Monthly Archives: August 2014

REUTERS | Brian Snyder
August 29, 2014

August 2014 digest: autumn approaches

Lord Byron, Don Juan, st.42:

“The English winter – ending in July, To recommence in August.”

As the quote suggests, August has not been the warmest of summer months this year and autumn feels as if it is approaching fast. The end of endless sunshine seemed to coincide with the start of the school holidays and, while many escaped the UK’s shores for sunnier climates, those who stayed have witnessed a rather quiet month.

How time flies. This time last year we were telling you about Practical Law Construction joining the Ask party. You can contact us using the “Ask a question” button on the Practical Law Construction homepage. Three years ago, the construction industry was preparing for the changes to the Construction Act 1996 and we were telling you all about that. To reflect the passage of time, we have updated all our materials, particularly in relation to payment, suspension and adjudication. Continue reading →

REUTERS | Jason Lee
August 27, 2014

Time to change “time at large”?

Most of us are only too familiar with the argument (so beloved of contractors) that “time is at large”. We also know that it is rarely successful. The principle by which time becomes at large was recently commented on by Ramsey J in Bluewater Energy Services BV v Mercon Steel Structures BV and others:

“The principle is of some antiquity and has a surprising effect on the contractual obligations as to the time for completion. As I have found that there is an extension of time mechanism for acts of prevention and I am able… to determine the appropriate adjustments to the… Key Dates, this is not the opportunity to consider the underlying basis for the principle.”

Continue reading →

REUTERS | Fabrizio Bensch
August 26, 2014

Legal professional privilege versus the iniquity principle

In JSC BTA Bank v Ablyazov and others, the claimant Kazakhstani Bank sought disclosure of documents concerning Mr Ablyazov’s assets from Mr Ablyazov’s current and former solicitors. It was agreed that these documents would attract legal professional privilege unless falling within the so-called “iniquity exception”.

As the judgment arguably widens the application of this exception, those acting in cases where there are allegations of fraud should be aware of its potential application, even where there is no suggestion that they were aware of the fraud.

The question that I therefore seek to consider in this blog is, when will legal professional privilege cease to apply in respect of documents passing between a lawyer and his client in circumstances where there is no allegation of wrongdoing or knowledge of iniquity on the part of the solicitor? Continue reading →

REUTERS | Mike Blake
August 26, 2014

Latest guidance on acting as an expert – part 1

Over the years, I have written about various guidance aimed at those working to resolve disputes. This includes RICS’ guidance on how to deal with conflicts of interest and how to be an adjudicator. Two more pieces of guidance have recently been published.

This post considers Surveyors acting as expert witnesses (fourth edition), which RICS published in July. Next time I’ll be looking at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published earlier this month. Both take effect this autumn. Judging by some of the recent cases (which Matt is considering), this guidance is essential as the message still isn’t getting through as clearly as many would hope. Continue reading →

REUTERS | Jason Lee
August 19, 2014

Mitigation and expert evidence: the pitfalls

Hirtenstein v Hill Dickinson was a solicitors’ negligence case concerning the purchase of a luxury yacht. There have been a number of superyacht claims recently and they have often arisen as a result of late delivery. However, here one of the yacht’s engines was found to have been defective after sale. The issue was whether the purchaser’s solicitors should have advised the buyer that the seller should provide a personal guarantee as a condition of purchase.

While the court found that there had been negligence, it decided that it was not causative of the claimant’s decision to purchase the yacht without a personal guarantee. This meant that no loss was suffered. However, obiter, the court considered the principles of mitigation, and criticised the expert evidence in terms which are likely to be of wider interest. Continue reading →

REUTERS | Lisi Niesner
August 6, 2014

Challenges to adjudicator’s decision reminds me of Supermarket Sweep

When I read Lord Malcolm’s judgment in Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd, I was reminded of the TV game show, Supermarket Sweep. For those unfamiliar with Supermarket Sweep, as far as I can remember (with a little help from Wikipedia) the premise was that contestants played games to accumulate time, which they then used to fill their shopping trolley with goods by running around a supermarket. The one with the most valuable trolley at the end won the prize.

When you read Lord Malcolm’s judgment in Bouygues v Vital, you will see why I drew the supermarket trolley analogy. Continue reading →

REUTERS | John Kolesidis
August 1, 2014

Consequential loss exclusion clauses: the pitfalls

Consequential loss exclusion clauses are very common in commercial contracts, especially in those relating to construction and energy projects. They usually take a similar form to the following, which is from clause 17.6 of the FIDIC Red Book:

“Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract.”

The key thing to remember about consequential loss is that it doesn’t mean what you think it means. Continue reading →

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