Monthly Archives: July 2015

REUTERS | Dominic Ebenbichler
July 31, 2015

July 2015 digest: Aspect (again), the Budget and comment

F Scott Fitzgerald, The Great Gatsby:

“And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.”

In the aftermath of the Supreme Court’s judgment in Aspect v Higgins (that there is an extended limitation period, long after the usual limitation period in contract and tort has expired), we have looked at ways for parties to address this issue in their contracts. Consequently, we have amended our professional appointments and our schedules of amendments to the JCT contracts, and provided integrated drafting notes to allow you to understand those amendments and to agree them with the other side. Michael Mendelblat has also looked at some of the issues arising and Matthew Crossley has considered some of the lessons for consultants when agreeing terms.

Cash flow may be the lifeblood of the construction industry, but adjudication is the bread and butter for many. With only two new cases this month, it may feel like that butter was spread a little thin in July, but we still managed plenty of comment (even if it wasn’t all on adjudication): Continue reading →

REUTERS |
July 30, 2015

Aspect v Higgins: where do we go from here?

The outcome of Aspect v Higgins case may cause some old files to be dusted off. Most employers will have instituted proceedings to recover an adjudication over-payment within six years of the date of payment, but contractors may have left in abeyance their claims to sums over and above those that the adjudicator awarded. Like Higgins, they may find that they are now too late to claim these extra sums.

Inevitably, consideration will turn to whether it is possible to contract out of the effect of the Aspect decision. Any party to a construction contract may find itself on one or other side of this argument so there may be a mutual interest in making alternative provision. Continue reading →

REUTERS |
July 29, 2015

Electronic working in the TCC: is the ball in our court now?

Being a lawyer in 2015 is, for the most part, a 24/7, modern and instant affair. Drafts of contracts are exchanged in seconds, letters drafted and exchanged without the need to wait for the post (or DX) to be collected and pleadings served remotely in the early hours. Clients benefit too, as they can reach their legal representatives at any time via the joys of mobile email technology.

While many private practice firms have moved with the times, it sometimes feels like the court system and its offices, which close at 4.00 pm without fail, have not. However, the times are-a-changing and the TCC is at the forefront. Continue reading →

REUTERS |
July 28, 2015

The “menace that lies behind any threat to adjudicate” and section 106

Gotch and Gotch v Enelco Ltd was a feisty judgment from Edwards-Stuart J, one I’m sure that lends itself to being blogged about and oft quoted. It concerned an application for declaratory relief. Essentially, the Gotchs argued that the contractor, Enelco, had no right to refer a dispute to adjudication. They claimed the building contract had been amended to exclude adjudication and they fell within the residential occupier exception in section 106 of the Construction Act 1996. It is how Edwards-Stuart J dealt with the matter that I find interesting.

Continue reading →

REUTERS | Thomas Peter
July 24, 2015

Avoiding a blind alley: proving causation in an uncertain world

The Court of Appeal (in Graves v Brouwer) has taken the opportunity to re-visit the vexed question of how you should go about proving causation where there are a series of possible causes and, perhaps more importantly, how you shouldn’t do it. Anyone faced with a fire claim would do well to take heed.

The problem is easily stated, but not so easy to answer: Continue reading →

REUTERS | Russell Boyce
July 21, 2015

Harding v Paice and Springall – the prequel

The parties in Harding (t/a MJ Harding Building Contractors) v Paice and Springall are fairly familiar to us now, as this is the third time we’ve seen a reported judgment arising out of the building contract that Harding entered into with Messrs Paice and Springall. This one is actually the first of the three, even though it is the last to be made available (on Westlaw). Given it addresses the question of whether the parties had successfully amended their contract to exclude adjudication, you can probably guess what conclusion Ramsey J came to. Continue reading →

REUTERS |
July 20, 2015

Are you trading with consumers? Complying with the new ADR Regulations (part 2)

On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry.

The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, as amended by the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (which I will collectively call the Regulations). Continue reading →

REUTERS |
July 17, 2015

It is not a matter of “if” but “when” – cyber security in the construction industry

It seems that barely a week goes by without another high profile cyber breach (Ebay, JP Morgan Chase, Home Depot and Sony, twice, spring to mind). However, for every high-profile cyber-attack, there will be tens or hundreds of unreported phishing scams, malware intrusions and data losses stemming from employees (whether inadvertent of malicious).

Cyber security is a real and present danger within the construction industry and one which operators within the industry should be aware of and take steps to confront. A UK government 2015 survey indicates that 90% of large businesses and 74% of small businesses have suffered a cyber-security breach in the last year. Continue reading →

REUTERS | John Kolesidis
July 14, 2015

If there was no dispute then why didn’t they pay?

It may be a little old (it was handed down in March 2014), but Ramsey J’s judgment in City Basements Ltd v Nordic Construction UK Ltd is a reminder that a payment dispute crystallises when payment is not made. The party claiming payment does not have to do more to ensure there is a dispute. As Ramsey J said:

“There is no need… in the case of an adjudication where it is a simple dispute about payment, for the parties to do anything else other than comply with the contractual provisions.”

Continue reading →

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