Practical Law

The astute and keen-eyed readers of this blog will have noticed the paucity of adjudication decisions coming from the TCC in recent months. They may have also noticed that Scotland’s Court of Session has fared a little bit better in the judgment stakes, giving us the odd case to write about (most recently, Jonathan looked at Miller v BDP, I considered T Clarke v MMAXX). The judgment in Charles Henshaw & Sons Ltd v Steward & Shields Ltd is therefore welcome in providing me (and others) with something more to say.

Even though Lady Smith’s judgment is mainly a restatement of existing principles, it is interesting because she sits in the Inner House, which (I understand) makes this case equivalent to an English Court of Appeal case. Just like south of the border, we seldom see appellate court decisions dealing with adjudication. Continue reading →

For those of you unfamiliar with the role of the project monitoring surveyor (PMS), they are commonly appointed by banks or other funding institutions to advise on the risks of acquiring an interest in a development, and then monitoring the development, approving draw-downs from the funding institutions and the like. As a result of many developers becoming insolvent from 2008 onwards, claims against these surveyors have been quite commonplace in the past few years as banks seek to recover their losses.

I have undertaken project monitoring myself and acted as expert witness in a number of cases where banks have pursued PMSs. However, other than Practical Law’s excellent practice note, the only other detailed guidance is a RICS Guidance Note, and even that is quite broad-brush (it is currently being updated). Furthermore, to the best of my knowledge, the role of PMS had not previously been dealt with in a High Court judgment. I have therefore been eagerly anticipating the TCC’s judgment in Bank of Ireland v Faithful & Gould & CBRE ever since the case appeared in the TCC court list back in April. Continue reading →

A couple of weeks ago I wrote about party-party costs and whether adjudicators are up to the job of dealing with the parties’ costs, if they have the power to do so. In setting out my thoughts on whether adjudicators do have the skills (and I think those with arbitrator training certainly do have), I didn’t mention some of the intricacies of costs, such as what happens if one of the parties asks the adjudicator to make a split costs or issues-based order. I thought about it recently, only because I was considering a different issue – should I allow the referring party to put in yet another submission – and I wondered what impact a further submission may have on the overall outcome of the adjudication, as well as whether it would incur further unnecessary costs at a late stage of the process.

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It’s not often that we get a TCC judgment dealing with the interpretation of everyone’s favourite suite of domestic contracts, the JCT. Therefore, if you are a bit of a saddo like me, you will have read Akenhead J’s judgment in Oksana Mul v Hutton Construction Ltd with interest. In this case Akenhead J decided as a preliminary issue the meaning of an “appropriate deduction” under clause 2.30 of the Intermediate Form of Contract, 2005 edition (IC05), which is something I’ve had to deal with in a few adjudications over the years.

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