Monthly Archives: February 2015

REUTERS | Juan Carlos Ulate
February 27, 2015

February 2015 digest: CDM 2015 and public procurement

Algernon Charles Swinburne,  Atalanta in Calydon:

“For winter’s rains and ruins are over and all the season of snows and sins… And in green underwood and cover, blossom by blossom the spring begins.”

The first signs of spring may still feel a long way off but 6 April isn’t. In case you are unaware of the date’s significance, it is when the CDM 2015 come into force. During February we continued to prepare for that day, publishing a number of new resources (a note of frequently asked questions, five duty-holder checklists and a toolkit of our materials) and updating others (including our professional appointments). We also provided you with a comparison with the HSE’s draft regulations and told you that the JCT will publish amendment sheets. Continue reading →

REUTERS | Jumana El Heloueh
February 25, 2015

Insurance and subrogation

I recently negotiated a contract for the storage and maintenance of high value critical equipment. In the context of insurance solutions we discussed the issue of joint names insurance; whether it was necessary or desirable in the context of our project, whether a waiver of subrogation was required under the contract and how this might affect the behaviour of the party who would benefit from not being subject to a subrogated claim.

In my experience, the issue of joint names insurance and subrogation can be tricky and often causes problems when negotiating commercial contracts, so I was relieved to see that the Court of Appeal holds the same view.  Continue reading →

REUTERS | Beawiharta
February 25, 2015

Mediation, DABs and ADR in the Middle East (part one)

Taking up the challenge: the role of mediation, DABs and other ADR methods in the Middle East

With a considerable number of new and on-going projects in the Middle East, efficiently resolving disputes remains a pertinent issue for contractors and employers alike. The fallout following the global recession led to multiple disputes, but have contracting parties learnt any lessons?

Traditionally, dispute resolution in the Middle East utilised arbitration or litigation for the resolution of disputes. Despite this, parties should consider alternative dispute resolution (ADR) options such as mediation, dispute adjudication boards (DABs) and expert determination. While in other jurisdictions, such as England and Wales, it is common for parties to be open to and adopt ADR methods, the take up of such methods in the Middle East is rare. Parties are generally reluctant to move away from the traditional forms of dispute resolution. This blog briefly describes these methods of ADR and their use in the Gulf region. Continue reading →

REUTERS | Darren Staples
February 24, 2015

It’s all about how you present your case before the adjudicator

In Broughton Brickwork Ltd v F Parkinson Ltd, HHJ Stephen Davies considered that an adjudicator’s failure to have regard to a particular document was not fatal and so enforced his decision.

While, at first blush, it may not seem critical to a party’s case if the adjudicator overlooks a document or two from the parties’ bundles, here the adjudicator said (after the event) that if he’d seen this particular document (an email serving a pay less notice) then Broughton’s (the sub-contractor) claim would have failed. Instead, he found that no pay less notice had been validly served by F Parkinson (the contractor) and so £96,000 odd was due to Broughton under its interim application.

But how did this situation even arise in the first place?
Continue reading →

REUTERS | Kim Hong-Ji
February 17, 2015

Professional negligence and adjudication – an unsuitable match?

Over the years we’ve seen a number of adjudication cases in the TCC involving professional negligence, one of the most significant being London & Amsterdam Properties v Waterman Partnership. We’ve also had plenty of commentators question the suitability of adjudication for resolving professional negligence disputes. So with Valentine’s Day last week, I thought it appropriate to look at the latest professional negligence adjudication case to come out of the TCC and to consider whether professional negligence and adjudication are really an unsuitable match.

The case in question is Coulson J’s judgment in MW High Tec Projects v Haase Environmental Consulting, which concerned the design of a waste to energy plant constructed in Horsham, West Sussex. Continue reading →

REUTERS | Jim Young
February 13, 2015

Issuing a TCC claim before complying with the Protocol: “extreme peril”?

On numerous occasions the courts have emphatically stressed the need to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol). Sometimes, however, a claimant is hard up against the expiry of the limitation period and, as the lesser of two evils, has to issue proceedings without complying with it. In such circumstances the claimant needs to steer a careful course. Continue reading →

REUTERS | John Javellana
February 11, 2015

Back to back contracts: some problems and pitfalls

I have recently returned to private practice from a secondment with a major contractor client, which was an excellent experience as it allowed me to see life very much from the client’s point of view and understand, first-hand, many of the issues that clients face on a regular basis.

One issue that came up several times during my secondment was the “back-to-back” principle when drafting sub-contracts.  Continue reading →

REUTERS | Toby Melville
February 10, 2015

Money money money or adjudicator’s fees (again)

When Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International was published in 2012, I suspect there was a big intake of breath in the adjudication world, not just from adjudicators, but also from those involved in advising parties and the parties themselves. In deciding that an adjudicator was not entitled to his fees because his decision was unenforceable due to a breach of the rules of natural justice, the Court of Appeal handed down one of the most significant adjudication judgments. I commented on it at the time, twice.

If you are wondering why I’m mentioning this now, I suggest you take a look at Lord Tyre’s judgment in Stork Technical Services (RBG) Ltd v Marion Howitson Ross, a Scottish decision that seems to have slipped under the radar. Continue reading →

REUTERS | Mohamed Nureldin Abdallah
February 10, 2015

Two rules and some practical tips for mediation

I’m often asked how parties can be successful at a mediation. My answer is always that there are two rules parties need to follow:

  • Rule 1: prepare for a mediation and not trial, arbitration, adjudication or anything else.
  • Rule 2: prepare for your specific mediation, and not just any mediation.

Now, although these two rules do sound rather obvious, it is worth analysing them in more detail because mediation is not like any other dispute resolution process. It requires parties and party representatives to showcase different skills and, of course, every mediation is different.

Continue reading →

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