Monthly Archives: June 2014

REUTERS | Mike Blake
June 30, 2014

June 2014 digest: cricket, Wimbledon and the World Cup

Thomas Carew, A Song:

“Ask me no more where Jove bestows, when June is past, the fading rose;

For in your beauty’s orient deep, these flowers, as in their causes, sleep.”

June represents the start of summer, with roses in bloom and the summer solstice. June 2014 has been one of the warmest on record, which is good for the sporting events that are ubiquitous with the summer months (think MCC ties and fancy dress at the cricket and strawberries and cream at Wimbledon). This year we have also had the World Cup to entertain us. While some football fans will be disappointed their team didn’t make the knock out stages, others are just enjoying what is a feast of footie each day after work. Continue reading →

REUTERS | Ahmad Masood
June 24, 2014

Could legal advice privilege apply to claims consultants after all?

Let me start with an apology. I appreciate that this is the second time I’ve blogged about this rather dry subject this year. However, after April’s blog on the subject (Privilege and adjudication revisited), a friend of mine pointed out a twist which may mean that non-solicitor firms offering claims consultancy services can rely on legal advice privilege after all.

Let me explain. Continue reading →

REUTERS | Amit Dave
June 17, 2014

Can waiver or estoppel arguments rebut a condition precedent defence?

Over recent weeks, both Jonathan Cope and David Robertson have written about Akenhead J’s judgment in Obrascon v AG of Gibraltar. While they both looked at the condition precedent issues related to clause 20.1 of the FIDIC Conditions of Contract (in that case, the Yellow Book), Jonathan also considered the judgment’s potential impact on other standard form contracts (such as JCT and NEC3) and David highlighted some drafting points for both contractors and owners.

What neither considered (presumably because it did not arise in Obrascon, at least not in the judgment), is the possible impact that arguments related to waiver and estoppel may have on a condition precedent clause to rebut its finality. Continue reading →

REUTERS | Fabrizio Bensch
June 11, 2014

Surviving Mitchell: what happens when you serve witness and expert evidence late?

Much has been said and written about the decision in Mitchell v News Group Newspapers Ltd on the new, stricter approach to applications under CPR 3.9 for relief from automatic sanctions. However, relatively little has been said about the consequences of the Mitchell sanctions for the ongoing conduct of the action.

This post considers two common types of missed deadlines: the exchange of witness statements and expert evidence. It discusses how the court will approach an application for relief from sanctions, and what happens when relief is denied. Continue reading →

REUTERS | Kim Hong-Ji
June 10, 2014

Revisiting expert evidence again

In the last 15 months I’ve posted a blog about expert evidence on five occasions (I know, I’ve counted them). The overwhelming message from all of these posts is that the experts parties appoint could do better, either in the quality of their expert testimony, not being partisan or biased and in having the appropriate expertise for the dispute.

It was therefore interesting to read Akenhead J’s views on experts in his article for the Academy of Experts journal, The Expert and Dispute Resolver, earlier this year. Continue reading →

REUTERS | Ricardo Moraes
June 4, 2014

The continued growth of statutory adjudication is good news for a global construction industry

The continued proliferation of legislation providing for the mandatory adjudication of construction payment disputes is a welcome step in the global trend of encouraging alternative and interim dispute resolution. Experience of dispute resolution models of this type feeds into international practice in jurisdictions where this is not, presently, the norm, with positive results for all.

Last month Malaysia became the latest country to bring into force legislation providing for the mandatory adjudication of construction payment disputes. Continue reading →

REUTERS | Jason Lee
June 3, 2014

Witness evidence, memories and gull chicks

EM Forster may have written the classic novel, Where Angels Fear to Tread but, at this time of year, it may not be angels that have to look where they are going, but people, especially in urban areas with a gull population. If you are wondering what I’m referring to, take a look at the judgment in Kelly v Riverside Inverclyde (Property Holdings) Ltd.

Although this is a personal injury case, it ties in with what Matt was saying recently about witness evidence and the vagaries of our memories. Given the number of comments that Matt’s blog received, I thought it was worth revisiting the topic. Continue reading →

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