Dylan Thomas, Collected Poems:
“And I rose in rainy autumn, and walked abroad in a shower of all my days…”
September has been a warmer and drier month than on average, but autumn is now in full swing and the leaves are starting to turn and fall. That means the Michaelmas court term is about to start and we are only 12 weeks away from Christmas! Continue reading
This post is yet another in my (not so) occasional series about expert evidence and expert witnesses. It could be called, “Is it time for some experts to throw in the towel?”
Last time I looked at experts, I said that Leggatt J’s judgment in Hirtenstein v Hill Dickinson was one to read if ever you wanted to see how not to be an expert witness. A similar thing could be said about Weatherford Global Products v Hydropath Holdings Ltd and others, where Akenhead J doesn’t pull any punches. Continue reading
Regular users of international arbitration know that choice of seat is important, but what factors influence parties for or against a particular venue? Are certain venues considered better or worse than others and are there any emerging trends for regional choices? Earlier this year, Berwin Leighton Paisner’s fourth annual arbitration survey asked arbitration users these questions.
Summer is swiftly drawing to a close, but while many of us have been on our holidays, the construction industry appears to have been running at full-bore throughout the summer. Although there was a minor stagnation in July, there is still a significantly greater volume of work than compared to five years ago, and labour shortages are clearly a problem. For example, I was speaking to a sub-contractor recently who is struggling to get labour and has seen his labour rates increase by over 15% in the last year, and yet he is still winning work.
With the advent of online legal resources and, in particular, the online availability of legal textbooks such as Chitty on Contracts, many lawyers do away with purchasing hard copy practitioner’s texts. I always think that is a bit of a shame. I am surely not the only one who has been scrabbling around Chambers the night before a hearing for the most recent update to Keating on Construction Contracts, which a fellow barrister has taken from your room without leaving a note. There is nothing quite like that kind of unnecessary pressure to focus the mind.
One of my annual conundrums is whether to buy both volumes of the White Book; or just one volume; or not to buy at all, and instead rely on the online version. This year I opted for using the online edition, but I ended up having to buy the book anyway on the way to court, with only one month to go before the 2014 version came out. Now in possession of a gleaming but redundant tome, I figured I might as well get my money’s worth and delve into some of the more obscure provisions of the CPR, something that is less easily done online, perhaps because computer screens do not accidentally fall open on a particular page. Continue reading
Regular users of the NEC3 ECC will be familiar with its dispute resolution provisions set out in Options W1 and W2, used depending on whether the contract is a “construction contract” and the Construction Act 1996 applies (W2), or it isn’t and it doesn’t (W1). Both Options provide for disputes to be referred to adjudication and include similar prescriptive time limits for when things have to be done by. They also both provide for the giving of a notice of dissatisfaction in the event that one party is unhappy with the adjudicator’s decision.
Since none of this is new stuff, I was rather surprised to see the arguments advanced in Fermanagh District Council v Gibson (Banbridge) Ltd, which reached the Court of Appeal in Northern Ireland. Continue reading
A recent TCC decision potentially increases the significance of obtaining an order for indemnity costs.
In Kellie v Wheatley & Lloyd Architects Ltd, the successful defendant sought to recover costs of over £166,000 despite having had its cost budget slashed from over £140,000 to £91,700. It sought to get around the effect of the cost management order (CMO) by seeking an order for indemnity costs. Continue reading
When you’re in the midst of drafting a complex international construction contract, probably the last thing on your mind is specifying the governing law of your arbitration agreement. You may not think this is particularly important, or that it will be the same as the governing law of the underlying contract. This could prove a costly mistake.
Outside of renovating a kitchen, in construction circles we usually talk about kitchen sinks in the context of a claim where one of the parties has thrown everything in to it, the proverbial kitchen sink claim. In my experience, kitchen sink claims often crop up in adjudication, featuring in the law reports when the adjudicator’s decision is being enforced and one of the parties suggests the adjudicator breached the rules of natural justice in some way by dealing with it.
I therefore had a wry smile when I saw Leggatt J in the Commercial Court recently refer to a claim that included a “vast array of fittings and accoutrements” which were “palpably unjustifiable”, including the kitchen sink. It was one of the many items that had been included on a spreadsheet of repair costs prepared by the claimant’s engineering expert. I have Michael Mendelblat to thank for drawing my attention to this one. Continue reading
This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of tribunal, the CJC’s guidance applies to an expert of any discipline who is instructed to act in court proceedings. It reflects the April 2013 Jackson reforms and replaces the previous version, which is currently annexed to PD35. Continue reading
