Monthly Archives: May 2015

REUTERS | Toru Hanoi
May 29, 2015

May 2015 digest: the Queen’s Speech, courts and comment

Douglas Adams, The Restaurant at the End of the Universe:

“…one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them… anyone who is capable of getting themselves made President should on no account be allowed to do the job.”

The first majority Conservative government since 1992 was elected this month. Since then, we’ve heard the Queen’s Speech (which sets out the legislative programme for the 2015-16 Parliamentary session) and know the second budget of the year will be on 8 July 2015. While many of the bills in the Queen’s Speech may have come as no surprise, we covered the construction, property, planning and environmental aspects. Continue reading →

REUTERS | Steve Crisp
May 27, 2015

From the ground up: managing ground condition risk in the Middle East

Significant and unexpected costs and delay are incurred on many construction projects in the Middle East due to adverse ground conditions. It is a common problem that can be addressed by sensibly allocating risk between the parties.

In this post, we consider the apportionment of liability for ground condition risks under the FIDIC forms of contract, which are typically awarded in the Middle East, as well as possible contractual and local law remedies that may be available. We also give guidance on how to manage, minimise, share and transfer the risk. Continue reading →

REUTERS | Yuya Shino
May 26, 2015

More thoughts on adjudication in Ireland

A few weeks ago I wrote about the Adjudication Society’s regional conference in Dublin that considered the introduction of statutory adjudication in Ireland through the Construction Contracts Act 2013 (CCA 2013).

On that occasion, I highlighted possible issues with the enforcement of an adjudicator’s decision. This time, I’m looking at a few of the other issues that came out of the day. Continue reading →

REUTERS | Bob Strong
May 20, 2015

Design defects in offshore wind turbines: it’s an ill wind…

In my experience, one of the most common causes of construction disputes is conflict or ambiguity between contractual documents. This is perhaps hardly surprising, since they are often prepared by different members of the client’s team. Yet it can easily be avoided if the client is willing to invest a little time and effort (and money) in a consistency check.

The dangers of not doing so are amply illustrated in MT Højgaard A/S v E.On Climate and Renewables UK Robin Rigg East Ltd and another. As Practical Law’s Legal update, Liability when international standard is incorrect (Court of Appeal) highlights, the headline point in this case concerned whether the contractor should be liable for design defects in off-shore wind turbine foundations that arose due to compliance with an established (but incorrect) international design standard (J101). The Court of Appeal held that, on a proper construction of the contract as a whole, the contractor was not under a “fitness for purpose” obligation and had discharged his duty to exercise reasonable skill and care by complying with the J101 standard. That is all very well, but, as is so often the case, the headline does not tell the full story.  Continue reading →

REUTERS | David W Cerny
May 19, 2015

Adjudicator’s wide discretion to set the procedure and timetable unsuccessfully challenged

Only last week I was reading Tony Bingham’s piece in Building on bullying in adjudication, then up pops a case where the judgment (given by HHJ Raeside QC) refers to bullying. I will leave you to read what Tony said in his article and make up your own mind about why parties and their representatives do it and (seemingly) get away with it, and whether we should adopt Tony’s suggestions from the world of football of yellow and red cards, fines for “lambasting the referee” and a code of ethics for party representatives in adjudication. You can also draw your own conclusions about whether it is the same case as Tony’s pink and orange team members were from.

The case, Rydon Maintenance v Affinity Sutton Housing, also throws up several procedural issues worth a mention. Continue reading →

REUTERS | Shutterstock
May 14, 2015

Practical Law’s breakfast roundtable on liquidated damages

Last week I participated in Practical Law’s breakfast roundtable, Liquidated damages at a turning point?. The roundtable was led by Adrian Williamson QC and William Webb, barristers at Keating Chambers.

As I said when I wrote about the last breakfast roundtable on adjudication, while Chatham House rules do not permit me to reveal all that was said, what I can tell you is how enjoyable the session was. Continue reading →

REUTERS | Carlos Barria
May 12, 2015

When building projects go wrong

Just a month ago I said that there had been a “plethora of interesting cases streaming out of the TCC”. I obviously spoke (or was that wrote?) too soon as, since then, the steady stream of case law that we’d got used to appears to have dried up. That isn’t to say that there haven’t been any judgments, just that there have been less of late.

One such judgment is that of Edwards-Stuart J in Cockell (t/a Cockell Building Services) v Holton.  Continue reading →

REUTERS | Lucy Nicholson
May 8, 2015

Payment for variations with no instruction

In this third post of a series looking at variations, I consider what is probably the most commonly asked question in this area:

Is a contractor entitled to be paid for undertaking a variation where no formal instruction has been issued?

Before answering this question, it is important to remember why construction contracts incorporate variation mechanisms. Continue reading →

REUTERS | Mathieu Belanger
May 6, 2015

Bonds and warranties: specific performance v substituted performance?

We are often contacted by clients when a main contractor has failed to provide documents that they are contractually obliged to procure, such as sub-contractor warranties, performance bonds or parent company guarantees. The terms of these documents are usually agreed and appended to the building contract, but the contractor is only required to provide these once the works have commenced. If the contractor fails to do so, what can the employer do? Continue reading →

Share this post on: