Monthly Archives: December 2015

REUTERS | Mike Segar
December 23, 2015

December 2015 digest: adjudication, payment and a quiz

William Shakespeare, Sonnets:

“How like a winter hath my absence been, from thee, the pleasure of the fleeting year!

What freezings have I felt, what dark days seen! What old December’s bareness every where!”

It was more than 40 years ago that Lord Denning said that cashflow was the “lifeblood” of the construction industry. It still is, and non-payment is still an issue (as so many adjudication enforcement cases testify). Recently the TCC has been looking at payment and (specifically) the consequences of failing to serve a pay less notice. Payment issues were at the fore of the dispute in RMP Construction Services Ltd v Chalcroft Ltd. Continue reading →

REUTERS |
December 23, 2015

July to December 2015, a half year case review

J K Rowling, Harry Potter and the Deathly Hallows:

“‘Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour.

‘No, I’m not,’ retorted Hermione. ‘I’m hoping to do some good in the world!'”

The second half of 2015 has seen a number of interesting decisions affecting construction and engineering practitioners. For ease, we have divided them into adjudication cases and “other” cases. Continue reading →

REUTERS | Ali Hashisho
December 21, 2015

Adjudication: Late Payments Act no route to recovering costs

Adjudication‘s key selling point is that it is relatively quick and low-cost compared to other forms of dispute resolution, such as High Court litigation. However, the costs are not inconsiderable, and with adjudicators rarely given the power to award parties their own costs, successful parties in adjudication rarely recover those costs.

This year we have acted for many responding parties in adjudications involving claims for payment where the referring party has also sought to recover its costs of the adjudication proceedings through another route. These claims for costs have been based on section 5A of the Late Payment of Commercial Debts (Interest) Act 1998 (the Late Payment Act), as amended by the Late Payment of Commercial Debts Regulations 2013 (which have been in force since 2013).

Every claim failed for the reasons set out below. Continue reading →

REUTERS | Fred Thornhill
December 16, 2015

When is a door not a door? When it is ajar!

With Christmas fast approaching (along with terrible cracker jokes – I’m sorry, and thank you for reading on), you might be forgiven for missing the costs decision in Van Oord UK Ltd and Sicim Roadbridge Ltd v Allseas UK Ltd (OSR and AUK respectively). However, it provides a useful consideration of whether, and if so when, a defendant’s Part 36 offer can amount to a claimant’s Part 36 offer (with the attendant cost enhancements). Continue reading →

REUTERS |
December 15, 2015

Construction contracts and assignment of invoices: the future

With the festive season in full swing, thoughts invariably turn to the New Year and along with expectations and good intentions comes the prospect of regulatory changes. These include the Business Contract Terms (Restrictions on Assignment of Receivables) Regulations 2015 (the Regulations), which are expected to come into effect in early 2016.

The Regulations aim to make it easier for small and medium sized business to access cheaper and alternative methods of finance, by nullifying any contractual provision which purports to prohibit or restrict a supplier’s right to assign their invoices.

Given that most construction contracts contain restrictions on assignment by suppliers of goods or services, awareness of these new measures for construction clients and suppliers alike is key. Continue reading →

REUTERS |
December 15, 2015

Adjudication is “regarded as a blessing” and should be conferred on all industries

Just a few weeks ago, I wrote that section 105(2) of the Construction Act 1996 should be consigned to George Orwell’s fate worse than death, Room 101. It seems that Coulson J has similar feelings, although he expressed it rather differently in  round two of the dispute between Severfield (UK) Ltd and Duro Felguera UK Ltd. Continue reading →

REUTERS | Toby Melville
December 14, 2015

Mediation update: indemnity costs for unreasonable refusal to mediate and no dispute too intractable

Recent weeks have brought two further decisions concerning an unreasonable refusal to mediate. The message from the courts on when to deal with a request to mediate is now clear: parties are expected to respond promptly. The message on how parties should respond is more opaque.

The courts, with Halsey v Milton Keynes no doubt in mind, have not gone as far as to say parties cannot ever refuse to mediate. However, unless a statute permits a party to say no (as I discussed previously in the context of the ADR Regulations 2015), the likelihood of a court now finding that a party has validly and reasonably refused to mediate does seem remote. Continue reading →

REUTERS | Brian Snyder
December 14, 2015

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2015 next week, to arrive in your inbox on Thursday 24 December 2015. We are then taking a break until the new year.

The first email of 2016 will be sent to arrive in your inbox on Thursday 7 January 2016. This email will include reports of all developments since 23 December 2015, as well as Practical Law’s looking forward to 2016 pieces.

Merry Christmas and a happy new year from Practical Law.

Practical Law Practical Law Construction

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