English proverb:
“Ne’er cast a clout till May be out.”
This phrase has been in use since at least the 18th century and is generally taken to mean that you shouldn’t be too keen to leave your winter clothes behind. There is a debate about whether the May reference is to the month or blossom from the hawthorn (or May) tree, which is synonymous with the countryside at this time of year. Whichever you prefer, the phrase has been particularly relevant this year. Continue reading
I acknowledge that many of you will pick me up on the first part of the title of this week’s blog. As you may know, Sir Robert Akenhead is no longer a High Court judge but he has been sitting as a judge in the TCC due to the current shortage of judges in that court. In my view, his recent judgment in J Murphy & Sons v W Maher and Sons widens the scope of construction adjudication. Continue reading
As the deluge of smash and grab adjudications continues to percolate through the construction industry, shrewd contractors are advancing more and more creative legal submissions as a way of reviving interim payment applications that have somewhere gone awry. Twice in the past year, the TCC has been addressed on the issue of whether a contractor can rely on an estoppel to resuscitate an interim payment application. In one of those cases, that estoppel was created solely out of the actions of the contract administrator.
Although the TCC has yet to fully articulate all of those situations in which the actions of the engineer or contract administrator are capable of giving rise to an estoppel, construction professionals would be wise to exercise a degree of caution and be wary of inadvertently bestowing such rights upon the contractor, much to the detriment of the employer. Continue reading
There was a great deal of furore leading up to the Supreme Court’s judgment in Cavendish Square Holding BV v Talal El Makdessi and Parking Eye Ltd v Beavis, and how the legal landscape might change in distinguishing valid liquidated damages clauses from penalties. Therefore, it was with baited breath that I visited the Supreme Court’s website as soon as the judgment was published. However, I have to admit that it didn’t provide the clarity I had hoped for, and my initial reaction was to question how this might benefit contracting parties, and the construction industry at large.
There has been much written about the case and last week I had the pleasure of attending the SCL talk at the National Liberal Club, London to hear Mathias Cheung, a pupil at Atkin Chambers, present his SCL Hudson Prize winning paper. I have to say that the talk was enlightening, and in some respects justified my initial reaction on reading the case (I must confess I haven’t read all 123 pages of the judgment). Those keen-eyed SCL members will have noted that Mathias’s excellent paper has now also been published. Continue reading
Most employers will want to limit variations as a means of controlling costs. However, on a day to day basis, the power to instruct variations lies with the contract administrator.
Proactive and successful project management may require the contract administrator to direct the contractor without going back to the employer on every occasion. But, if the contract administrator instructs changes that the employer has not authorised, will the employer be liable for the cost of this work? Continue reading
We often see TCC judgments where the court has granted a party declaratory relief on an issue. When adjudication proceedings are (or have been) on-going, this commonly arises in the context of an adjudicator’s alleged breach of the rules of natural justice or because of a jurisdictional issue.
Given the number of disputes that are referred to adjudication, and the small number that involve court proceedings, it is probably no surprise that we rarely see the court dealing with preliminary issues. That said, there have been a couple of examples recently (namely Carillion Construction Ltd v Woods Bagot Europe Ltd and Emcor and Amec Foster Wheeler Group Ltd v Morgan Sindall). They both made me think about how disputes can be split into bite-sized chunks and referred to adjudication, just like preliminary issues can be dealt with by a court. Continue reading
“There is little doubt that the Agreement is tortuously, laboriously and…badly drafted. It makes any draftsman itch to have a try at it. However I have to decide what it means.”
As someone involved in drafting and negotiating construction contracts, Proudman J’s analysis of the sale contract in Bristol Rovers (1883) Ltd v Sainsbury’s Supermarkets Ltd (recently affirmed by the Court of Appeal) represents something of a nightmare to me. It illustrates the horrors that can result from using a poorly defined “endeavours” obligation. Continue reading
I read somewhere that fifty-somethings are the most flexible workers – and not just in the legal profession.
My fifty-something postman is a retired Royal Marine and the sixty-something Tesco delivery man recently retired from a desk-bound office job.
We are now told that “agile is the new flexible” and people write about it as if it was something new but, in fact, I think that it has been going on for years. Continue reading
It was Cher who sang “If I could turn back time“, and that song came to mind when I was reading the latest adjudication survey results by Construction Dispute Resolution, in conjunction with the Adjudication Society.
You may wonder why I’d think of that song, and it is because I was thinking about how construction adjudication in 2016 is very much like how I remember domestic construction arbitration was in 1996, albeit with a wider audience and greater level of industry participation (and it is a fair bit quicker).
Continue reading
In Carillion Construction Ltd v Emcor Engineering Services Ltd and others, an issue arose as to the proper interpretation of a relatively unusual extension of time clause in a standard form construction contract.
Carillion contended that the particular nature of the clause warranted a departure from the method by which extensions of time are usually added to the contractual completion date in a construction, engineering or energy context. Despite Carillion’s “well made” submissions, Miss Recorder Nerys Jefford QC (sitting as a judge of the TCC) held that, on its proper interpretation, the relevant clause required the court to treat extensions of time in the “usual” manner and, on that basis, found for Emcor in respect of the relevant issue.
