Monthly Archives: August 2016

REUTERS | Paulo Whitaker
August 31, 2016

August 2016 digest: Olympic success

Pierre de Coubertin, founder of the International Olympic Committee:

“The important thing in the Olympic Games is not to win, but to take part; the important thing in Life is not triumph, but the struggle; the essential thing is not to have conquered but to have fought well.”

With test cricket and Rio 2016 both finishing this month (and congratulations to Team GB for coming second in the medals table), it feels like summer is finally drawing to a close. The school holidays may still be with us (just), but August has been a relatively quiet month on the current awareness front.  Continue reading →

REUTERS | Amir Cohen
August 30, 2016

The latest chapter in Harding v Paice

In a decision handed down last week, Ms Finola O’Farrell QC (sitting as a deputy High Court judge) has held that Mr Paice and Ms Springall (the employers) are entitled to have a recent adjudication decision of Mr Christopher Linnett enforced. She did not accept the submissions made by Mr Harding (the contractor) that:

  • The adjudicator’s decision was reached too late and therefore a nullity.
  • There was apparent bias on the adjudicator’s part.

Continue reading →

REUTERS | Gary Hershorn
August 30, 2016

CEDR’s dispute resolution procedure for PFI and long-term contracts

This year has been relatively quiet on the adjudication front, with relatively few reported cases. Consequently, I keep finding myself having to look at other things to write about. This has meant the topics have become more diverse as time goes on (and even Star Trek has managed to creep into the blog!). This week is no different, and it is the turn of CEDR’s dispute resolution procedure for PFI and long-term contracts. Continue reading →

REUTERS | Kacper Pempel
August 24, 2016

The continuing case for wetware solutions in the provision of legal services: vampires and the experienced contractor

I have recently been reading the dire predictions of legal futurologist, Richard Susskind, once more claiming that lawyers’ days are numbered and that pretty soon computers will take over the world.

For my sins, some of my youth was spent gently snoozing through lectures on inference engines, fuzzy logic, and learning computer systems. One thing that I do recall was the challenge faced by learning computer systems trying to form an internally consistent understanding of the world when faced by contradictory statements such as “vampires come from Transylvania” and “vampires do not exist”.

What does this have to do with the law, you ask? Well, I have found that reasonable experienced contractors have a lot in common with vampires. Continue reading →

REUTERS | Carlo Allegri
August 23, 2016

The parties cannot agree whether a cow that is stuck in the mire will moo

Sometimes you see a judgment on BAILII and your heart sinks, not because of the subject matter of the case, but just the length of the judgment. I suspect I’m not alone in thinking that, nor was I the only one to experience that sinking feeling when I saw Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation. At 1,885 paragraphs long, it’s a modern day equivalent of Tolstoy’s War and Peace (Wikipedia tells me the first edition of that book had 1,225 pages).

Apart from word count, I doubt we’ll find many similarities between the two:

  • Tolstoy wrote about the history of Napolean’s invasion of Russia and its impact on “Tsarist society, through the stories of five Russian aristocratic families”.
  • Stuart-Smith J was considering the consequences of laying a pipeline in Colombia in the mid-1990s, where the litigation involved 109 claimants (from 73 farms), each of whom claimed that the pipeline caused damage for which they should be compensated.

Continue reading →

REUTERS | Jean-Paul Pelissier
August 22, 2016

Concurrent delay – the “Saga” continues

Saga Cruises BDF Ltd v Fincantieri SpA is a recent decision of Ms Sara Cockerill QC sitting in the Commercial Court and concerning a contract to dry dock, repair and refurbish a cruise ship. It provides a welcome opportunity to revisit the principles governing a contractor’s entitlement to an extension of time for completion of the work in circumstances where there are, or are purported to be, concurrent causes of delay. Continue reading →

REUTERS | Vasily Fedosenko
August 17, 2016

Retrospective validation in insolvency context just got more difficult

Conferences on insolvency issues might seem rather dry but are often enlivened by discussions of how to tell when a company is on the brink of insolvency. Ostentatious headquarters and the quality of the directors’ limousines are often cited. However, there is a danger in dealing (even routinely) with companies in this position that is posed by section 127 of the Insolvency Act 1986 (IA 1986). This provides that in a winding up by the court, any disposition of the company’s property made after commencement of winding up is void.

Further, IA 1986 provides that once a winding up order is made, the winding up is taken to have commenced from the date of presentation of the petition. So, once the winding up petition is presented, then trading by the company and any payments received from it are at risk.

This was the issue in Express Electrical Distributors Ltd v Beavis and others, which was decided by the Court of Appeal on 19 July 2016. Continue reading →

REUTERS | Kai Pfaffenbach
August 16, 2016

Adjudication costs and the Late Payment of Commercial Debts (Interest) Act 1998 (Part 1)

Very occasionally a case pops up on BAILII from a number of months ago meaning that, if you’re not careful, you’ll miss it. That is what happened a few weeks ago when Lulu Construction Ltd v Mulalley & Co Ltd (which was decided in March) suddenly appeared.

This case is interesting because it concerns an issue that has been vexing some in the adjudication world:

Is it possible for a referring party to recover its costs under the Late Payment of Commercial Debts (Interest) Act 1998, as amended by the Late Payment of Commercial Debts Regulations 2013?

The judgment appeared not long after Rachel Gwilliam of Blake Morgan presented her excellent paper on this subject to the Society of Construction Law in London, so I thought I would give you my two penneth worth on the subject. Continue reading →

REUTERS | Neil Hall
August 10, 2016

Excluding liability for terrorism

One of our clients was recently surprised to see a consultant engineer request a complete exclusion of liability relating to terrorism. Could this be correct, especially for a project in central London? In many cases, shouldn’t designing to take account of terrorism, unpredictable and callous though it is, be an essential part of the professional team’s job? Continue reading →

Share this post on: