Monthly Archives: September 2016

REUTERS | Kevin Lamarque
September 28, 2016

September 2016 digest: JCT and adjudication

EB White, Charlotte’s Web:

“The crickets sang in the grasses. They sang the song of summer’s ending, a sad monotonous song. ‘Summer is over and gone, over and gone, over and gone. Summer is dying, dying.’ A little maple tree heard the cricket song and turned bright red with anxiety.”

As in 2012, summer has ended on a high note, with British sportsmen and women exceeding all expectations and finishing second on the Paralympics medal table (with 64 golds and a total of 147 medals). Continue reading →

REUTERS | Eric Gaillard
September 28, 2016

The contract administrator’s discretion in relation to variations

The contract administrator has two distinct roles in relation to variations under most construction contracts:

  • Responsibility for issuing variation instructions on the employer’s behalf.
  • Undertaking the necessary valuation and determining how much money the contractor is due.

The contract administrator’s decisions made under both roles can prove contentious. But how much discretion does it have in undertaking those roles and to what degree can its decisions be challenged? Continue reading →

REUTERS | Daniel Munoz
September 27, 2016

Adjudicators making mistakes

Way back in the depths of time (or July 2000 to be precise), the Court of Appeal took its first look at adjudication in an appeal from a Dyson J judgment (Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd). The principles that were laid down in that case have stood the test of time and the rest, as they say, is adjudication history.

I was reminded of the judgment in Bouygues v Dahl-Jensen the other day when I was reading an Australian case that was featured on Keating Chambers’ website, CH2M Hill Australia PTY Ltd v ABB Australia Pty Ltd. Continue reading →

REUTERS | Russell Cheyne
September 22, 2016

Innovation, can we get some more?

“Innovation” and “collaboration” are the kind of buzz words that are batted around very frequently. Unfortunately, the more often I hear them, the less sure I am of what their importance is in an infrastructure context. Some of the answers can be found in the report, Innovation in the Supply Chain, which was published following a joint investigation by Costain, the University of Cambridge and Pinsent Masons LLP into construction practitioners’ views on innovation and collaboration in construction contracts.

This report provides an interesting snapshot of how industry practitioners view the contractual status quo and what can be done with current contracts in order to get the industry to collaborate and innovate more. Continue reading →

REUTERS | David Gray
September 21, 2016

Court of Appeal in Transocean interprets limitation and exclusion clause

The judicial task is one fraught with difficulty: the complexity of the issues, the evolving nature of the common law, and the risk of appeal all figure large. This is particularly the case when judges turn to consider the correct interpretation of limitation and exclusion clauses, for two principal reasons:

These difficulties were aptly demonstrated recently in Transocean Drilling UK Ltd v Providence Resources plc. Continue reading →

REUTERS | Yuri Maltsev
September 20, 2016

RICS consults on fourth edition of adjudicator’s guidance note

When RICS published the third edition of its guidance note, Surveyors acting as adjudicators in the construction industry, it was Jonathan who told you all about the changes. Therefore, it is only fair that I take a turn and look at the consultation draft for the fourth edition, highlighting some of the proposed changes from the third edition. Continue reading →

REUTERS | Ognen Teofilvovski
September 13, 2016

Harding v Paice and Springall – Episode V: a case of no apparent bias

I wonder if you, like me, sometimes get confused by the names and numbers of the Star Wars films. For those of us born before the 80’s there were only ever three: Star Wars, The Empire Strikes Back and Return of the Jedi. However, now the first film is called Star Wars: Episode IV – A New Hope, and we’ve had prequels and sequels. Personally, I’ve lost track.

A similar problem arises with the TCC adjudication enforcement cases involving the long-running battle between Gary Paice and Kim Springall (property developers) and MJ Harding (building contractor). This is our fifth blog on cases involving these parties, and the last two have been the Christmas special and the Prequel. I have decided to rename them in a Star Wars-esque fashion, and I will therefore refer to this as Episode V. Continue reading →

REUTERS | Jumana El Heloueh
September 7, 2016

Court of Appeal quells hope of an organising principle of good faith in English law

As an Australian-qualified lawyer, any judicial mention of “good faith” in the English courts piques my interest. Australian courts readily imply broad duties of good faith into commercial contracts. By contrast, you don’t need to look further than Chitty on Contracts,  Vol 1 (Sweet & Maxwell 32nd ed, 2015), paragraph 1-039, to find that “in English contract law, there is no legal principle of good faith of general application”. That is, until members of the judiciary, such as Leggatt J began to warm up to the idea. However, in its unanimous judgment in MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt, the Court of Appeal has curbed this enthusiasm. Continue reading →

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