Monthly Archives: August 2015

REUTERS | Ulises Rodriguez
August 28, 2015

August 2015 digest: payment notices and costs budgets

Sir Isaac Newton (attributed):

“I don’t know what I may seem to the world, but as to myself, I seem to have been only like a boy playing on the sea-shore and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all undiscovered before me.”

August, a month of languid summer days spent by many on the beaches of faraway shores. For those who have remained closer to home, it has been a quiet month, and it feels like the calm before the storm of autumn (although, for some, it may feel like that has already arrived). Continue reading →

REUTERS | Corbis
August 25, 2015

Costs budgeting: TCC gives out the hairdryer treatment in GSK v QPR

The TCC’s latest judgment on cost estimates shows once again that it is leading the way in keeping legal costs down. In GSK Project Management Ltd v QPR Holdings Ltd, Stuart-Smith J found it:

“…hard to imagine anything more sterile than arguing about a grossly excessive cost estimate.”

It is possible that he hadn’t imagined a blog about a grossly excessive cost estimate!

If the subject matter is sterile, Stuart-Smith J’s comments about the claimant’s costs budget were anything but. His judgment should be required reading for lawyers everywhere. Having worked through a budget which was “so disproportionate to the sums at stake or the length and complexity of the case that something has clearly gone wrong”, and described the estimated hours as “quite simply absurd” and “astonishing”, he ordered GSK to pay QPR’s costs and directed GSK’s solicitors to inform their client of the terms of his judgment. Continue reading →

REUTERS | Denis Balibouse
August 25, 2015

Are we closer to an end to smash and grab adjudications?

It’s not clear whether the adjudicator in Henia Investments v Beck Interiors was dealing with a “smash and grab” adjudication, since the judgment contains so few facts about that aspect of the parties’ dispute. However, I think the case is yet another example of the tide turning against those who want to “smash and grab”, and reflects the continuing moves by the TCC to supervise our industry where it perceives there may be an injustice or gamesmanship. Continue reading →

REUTERS | Juan Carlos Ulate
August 18, 2015

Walker and the burden of proof: where are we after Aspect?

Just over a year ago, I wrote a piece for this blog considering where the burden of proof lay if an adjudicator’s decision was challenged in subsequent litigation. If the adjudicator had, for example, decided that a contractor was entitled to additional payment for a claimed variation, would the employer have to disprove that entitlement, or would the contractor have to prove it in litigation once a challenge was instituted? The orthodox position had always been thought to be the latter, but obiter comments by Gloster LJ in Walker Construction v Quayside Homes suggesting that the former was correct had considerably muddied the waters.

Now, of course, we have the Supreme Court’s decision in Aspect v Higgins. I thought I would re-visit my earlier blog to see where we are in light of that decision, and whether the position is any clearer. While those who were hoping that Aspect would address this important issue directly will be disappointed, I do think that any attempt to use an adjudicator’s decision to reverse the burden of proof is, notwithstanding Gloster LJ’s comments, ultimately unlikely to be successful. Continue reading →

REUTERS | Athar Hussain
August 18, 2015

With expert determination, the expert must do what he was appointed to do

Expert determination is used to resolve many types of disputes, particularly disputes of a specialist or technical nature. It is a binding process that can be a quick and effective means of determining such disputes, but only when it works. When it goes wrong, as with many other things, it can become costly and time consuming to sort out.

Last year I looked at two Court of Appeal judgments on expert determination:

  • Shafi v Rutherford, where Floyd LJ held that the expert’s determination was invalid and unenforceable because the expert had misinterpreted his jurisdiction.
  • Premier Telecom  v Webb, where Moore-Bick LJ held that the expert’s determination was binding as the expert had not departed from his mandate.

The question of whether the expert did what he was appointed to do has recently been considered by the Court of Appeal, this time in Begum v Hossain. Continue reading →

REUTERS | Ali Jarekji
August 11, 2015

Ambiguity, mistake and Rainy Sky over Oxwich Bay

The lines between mistake, implied terms and ambiguity are blurred in Arnold v Britton.

In some ways adjudicators have it easy. Their decisions are difficult to challenge, private and are unlikely to be of any significance outside the scope of the project in question. This allows them a certain freedom to give a decision that, provided that it is legally sound, is fair. The same does not apply to the members of the Supreme Court, whose words will be pored over for guidance for decades to come.

This appears to have been in the minds of their Lordships when hearing the recent case of Arnold v Britton. Continue reading →

REUTERS |
August 4, 2015

Rider 1 to the SCL protocol: common sense prevails

A few weeks ago a group of people emerged from a dark and smoky room after years of negotiations and announced to the world that they had at last reached agreement. No, I am not talking about the recent Iranian nuclear deal, but rather the first amendment to the Society of Construction Law’s Delay and Disruption Protocol. This has the rather catchy title of “Rider 1”.

As many of us will be aware, the dark art of delay analysis can provoke some vociferous views, and the review committee, led by Kim Rosenberg, should be commended for their efforts in reaching a consensus. Continue reading →

REUTERS |
August 3, 2015

Practical Law’s breakfast roundtable on mediation

Last week I participated in Practical Law’s breakfast roundtable, Using mediation to resolve your construction dispute – why and how?. The roundtable was led by Rosemary Jackson QC and Elizabeth Repper, barristers and mediators at Keating Chambers.

As I said when I wrote about the last breakfast roundtable on liquidated damages, 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 →

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