Monthly Archives: September 2015

REUTERS | Toby Melville
September 30, 2015

September 2015 digest: prelude to autumn

John Keats, Complete Poems and Selected letters:

“Season of mists and mellow fruitfulness, close bosom-friend of the maturing sun.”

One of the coldest summers for several years has ended. Less an Indian summer (which is described as a “period of unseasonably warm, dry weather that sometimes occurs in autumn in the Northern Hemisphere”), more a cool, damp prelude to the remaining autumn and winter months to come (although September itself ended on a bright and sunny note).

September also felt a bit like a damp squib, so little seemed to be happening in the construction world. For us, it seemed to be all about comment and little else, although we did have the first reported adjudication enforcement cases since July. First, Stuart-Smith J looked at oral construction contracts and substantial performance (and Matt Molloy commented on the case’s impact for adjudicators). Then Coulson J considered natural justice and oral contracts. Matt also commented on when it is appropriate for the court to allow a party to rely on expert evidence.  Continue reading →

REUTERS |
September 30, 2015

The current status of the complex structure theory

Nearly a quarter of a century has passed since Lord Bridge’s discussion of the complex structure theory in Murphy v Brentwood. One might have reasonably expected that in the years that have passed, the position of the complex structure theory in English tort law would have finally been settled upon. However, this has not been the case and uncertainty still remains as to the applicability and scope of the complex structure theory in English law. Continue reading →

REUTERS | Ina Fassbender
September 29, 2015

What to reasonably expect from your adjudicator’s decision (part 2)

Formulating the issues

Someone recently asked me who chooses the photographs for our blog, and I explained that it was the good people at Practical Law. It’s quite a tough task to find photographs that relate to the subjects we blog about, so this week I’d pondered suggesting a photograph of a West Highland Terrier.

Let me explain. I wrote this post sitting in my study dog-sitting a friend’s West Highland Terrier, Otis. I was sad to see the little guy go, so I thought a photograph would be a fitting reminder. Also, I was once told that mentioning ones pets in blogs encourages people to read them (I’ve no idea why!). However, I thought I’d let the blog speak for itself rather than try and entice you with a photograph of a dog.

Anyway, as usual I’m digressing.

In part 1 of this blog I looked at how an adjudicator should go about producing a good looking and professional decision. In part 2, I consider a skill that is critical for any adjudicator to possess: the ability to formulate the issues. Continue reading →

REUTERS |
September 22, 2015

Oral construction contracts and adjudication

It is almost four years since the amendments to the Construction Act 1996 came into force. In all that time, we haven’t seen the anticipated flurry of cases dealing with the new payment rules (although there has been handful in the last 18 months or so) or the consequences of extending the definition of construction contract through the repeal of section 107 to include oral contracts. Therefore, it came as a bit of a pleasant surprise to read Stuart-Smith J’s judgment in Purton (t/a Richwood Interiors) v Kilker Projects Ltd. Continue reading →

REUTERS | Srdjan Zivulovic
September 21, 2015

“Fair presentation of risk” and the Insurance Act 2015: what does it mean for the construction industry?

The Insurance Act 2015, which does not come into force until August 2016, changes the way in which insurance is conducted. The delay in commencement of the Act is intended, at least in part, to give insurers time to change their policy wording and procedures. It is likely that some of the new policy wordings and procedures will give rise to disputes and in the context of construction insurance in particular, there are likely to be issues relating to the concept of fair presentation of risk that is introduced by the Act.  Continue reading →

REUTERS |
September 15, 2015

Court of Appeal guidance on incorporation of terms and limits of the factual matrix

It is comparatively rare that TCC decisions make their way up to the Court of Appeal, so, when they do, the judgments usually contain something of note for the construction practitioner.

The judgment in Northrop Grumman Missions Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd is no exception. Although the court itself appeared keen to emphasise that the case turned “on what is ultimately a short point of construction, raising no issues of principle”, two aspects of the decision are worthy of further comment. Continue reading →

REUTERS |
September 15, 2015

What to reasonably expect from your adjudicator’s decision

Part 1: hey good looking

It’s a real shame that the adjudication guidance produced by the Construction Umbrella Bodies Adjudication Task Group (CUBATG) has never been updated, as it really is very good. Unfortunately, it is now extremely out of date. There are also some excellent adjudication guidance notes produced by the likes of the RICS and the Adjudication Society but, like the CUBATG guidance, these guides don’t go into decision writing in any great detail. Nor does the Construction Act 1996 make any reference to what form a decision should take. Continue reading →

REUTERS | Darren Staples
September 11, 2015

The art of “kilting”: key differences between Scottish and English law when drafting construction contracts

Following the 2014 referendum, we may officially be “better together” but the legal systems in England and Wales and Scotland have always been subject to some stark differences. When dealing with a contract that is subject to Scots Law, what are the key differences and where should legal advisors look to adjust terms and conditions or their advice accordingly?

Kilting a contract

Converting an English law contract into a Scottish law equivalent will take more than adding a bit of tartan check to the front page and remembering that the two jurisdictions have different public holidays. Continue reading →

REUTERS | Thomas Peter
September 9, 2015

MF/1: The world moves on, but not everyone keeps up with the pace

Last year saw the publication of Revision 6 of the Model Form of Contract MF/1 (Revision 6), a contract that is well-thumbed in the world of supply and installation of mechanical and electronic plant.

The widespread use of MF/1 is in itself a hindrance to the uptake of new revisions. Contractors who have consistently used the older forms, almost as their standard terms and conditions, are comfortable with them and often reluctant to go through the process of updating internal processes in order to use the new version. Revision 6 may be hot off the press but Revisions 4 and 5 are still popping up at the party as old and faithful friends. Continue reading →

Share this post on: