Monthly Archives: June 2015

REUTERS | Navesh Chitrakar
June 30, 2015

June 2015 digest: Aspect v Higgins and an electronic filing pilot

Geoffrey Boycott, on the best way to play Shane Warne:

“My tactic would be to take a quick single and observe him from the other end.”

We haven’t had a sporting reference for quite some time in the monthly digest, but the Ashes are almost upon us. With England having won the one-day series against New Zealand and Andy Murray victorious at Queen’s, it seems apt to mention these achievements, lest it is a long summer against Australia, even without Shane Warne in the bowling line-up (after all, they do have Mitchell Johnson, Shane Watson et al).

For those who have been distracted by sport, during June we saw a number of interesting judgments, not least the Supreme Court’s judgment in Aspect v Higgins. As the first Supreme Court decision on adjudication, the judgment has attracted considerable attention. Isabel Hitching explained the case and its implications and Alastair Walls discussed issues from a practitioner’s perspective. Continue reading →

REUTERS | Tobias Schwarz
June 30, 2015

Mind the CAP, TfL’s conflict avoidance panel

The people of London and the UK should be proud of the London Underground, and there is absolutely no doubt in my mind that without it, London would not be the international powerhouse it is today. Imagine if all of the journeys made by tube each day were made by bus and car? Chaos would ensue.

The tube is now 150 years old and stations have been upgraded due to their age and wear and tear, as well as to accommodate other developments in London. Currently, many of the stations that are at interchanges with Crossrail are undergoing redevelopment. For example, Bond Street is currently in the midst of a £300 million upgrade in order to cope with the expected increase of 70,000 passengers per day.

Given the scope and complexity of projects such as Bond Street, TfL and its contractors are realistic enough to know that there is the potential for disputes. While adjudication is obviously available to them, the need was identified for something more flexible and less adversarial, in order that disputes could be “nipped in the bud” at an early stage. TfL and its contractors have therefore worked with RICS and together they have developed a Conflict Avoidance Panel (CAP). I am on the list of available CAP members, so thought I would try and answer some FAQs. Continue reading →

REUTERS | Jumana El Heloueh
June 29, 2015

BIM in the Middle East – resolving inconsistencies and managing the project lifecycle

In this blog we consider building information modelling (BIM) in the Middle East and some of the key issues you should be aware of as the use of BIM becomes more prevalent in the region.

BIM is being used with increasing frequency on some of the major infrastructure projects in the Middle East. For those unfamiliar with it, BIM is the digital representation of a project from concept design through to construction and operation.  Continue reading →

REUTERS | Yves Herman
June 24, 2015

Enforceability of dispute adjudication board’s decision in FIDIC Contracts

There have now been four court judgments in Singapore relating to the enforceability of a dispute adjudication board’s (DAB) decision under the FIDIC Red Book form of contract.

The latest judgment is PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation, which was handed down on 27 May 2015, and is discussed in greater detail here. It now appears that the way should be clear for the contractor to enforce the DAB’s decision, but it has taken it nearly seven years to reach this point.

What lessons can be drawn from this saga? Continue reading →

REUTERS | Sukree Sukplang
June 24, 2015

Aspect v Higgins: a practitioner’s view

Aspect v Higgins is the first case relating to adjudication or the Scheme for Construction Contracts 1998 to reach the Supreme Court. Indeed, so far as I am aware, it is the first case to reach the highest court since the House of Lords decided Melville Dundas v Wimpey in 2007. Accordingly, adjudication practitioners have been eagerly awaiting the decision, which was issued on 17 June 2015. Continue reading →

REUTERS | Stefan Wermuth
June 23, 2015

Bias and judicial recusal

It has been a while since I’ve looked at issues relating to bias and judicial recusal. This is partly because, until recently, we had lots of adjudication-related things to write about (although Jonathan does seem to have put the kibosh on that one). However, it seems these issues are still ripe for consideration in court proceedings, as the three cases that follow testify. Continue reading →

REUTERS | Eddie Keogh
June 17, 2015

Supreme Court rules on limitation period for challenging adjudicator’s decision

The Supreme Court has handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, determining by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment.

The issues

In most cases a dispute is referred to adjudication well within the limitation period. Adjudication is designed to aid cash-flow and a party seeking payment rarely waits until the end of the limitation period to commence an adjudication. Nor does a paying party usually wait many years to recover a payment that it has made following an adjudication. However:

  • Is it necessary for a paying party to seek a final determination of the dispute within the limitation period applying to the claim, or does it have six years from payment to bring its claim to court?
  • If the paying party seeks a final determination and loses can the party that was only partially successful in the adjudication recover more than has already been paid?

Continue reading →

REUTERS | Lucy Nicholson
June 16, 2015

Refurbishment projects: scratching beneath the surface…

In the current overheated commercial property market, we are seeing ever more lively debates about who should take the risk of defects in existing structures on refurbishment projects. As landlords look to refurbish properties in order to capitalise on rising rents and owner-occupiers choose to tart up their existing premises rather than pay those rising rents, good contractors are in high demand and can afford to take a much more risk averse approach to this aspect of contract negotiations.  Continue reading →

REUTERS | Gary Hershorn
June 16, 2015

Adjudication and consumers revisited

Some years ago Tony Bingham wrote about the Society of Construction Law (SCL) in his column in Building Magazine:

“…let me coax you to join the SCL. It’s the best ‘something’ I’ve ever joined. It does nothing, except get folk to give a talk, a paper, express a view, mull over construction law. Yes, there are lots of lawyers but also architects, engineers, surveyors, contractors, developers, arbitrators, adjudicators and mediators. Real people. It’s £100 a year and no exams, no politics, no silly rules, no bullying, no disciplinary tosh, no royal charter to be poked in the eye with. Great.”

I wholeheartedly agree with Tony on this point, and I would urge those of you who are not members to join. The object of the SCL is not an endless trawl of dinners and social events (although there are a few!), it is to further our knowledge of construction law. This object is probably best epitomised by its annual essay competition, the SCL Hudson Prize. Continue reading →

REUTERS | Corbis
June 9, 2015

Application for payment can be late but not early

It is a long time since I’ve been involved in the administration of a construction contract, but I often get to deal with payment disputes in adjudication where there are issues with how the parties have operated the contractual payment mechanism. It is for that reason that I found Edwards-Stuart J’s judgment in Leeds City Council v Waco UK Ltd interesting. Continue reading →

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