Monthly Archives: November 2016

REUTERS | Michaela Rehle
November 30, 2016

November 2016 digest: Ch-ch-changes

David Bowie, Changes:

“I watch the ripples change their size
But never leave the stream
Of warm impermanence and
So the days float through my eyes”

The government’s appeal to the Supreme Court on Article 50 will not be heard until next month (and the outcome may not be known until early next year), and so it is pure speculation whether the 11 Law Lords will uphold the High Court’s decision, or decide something else. Either way, Brexit has caused a constitutional debate the like of which the country has not seen before, at least not in modern times.

While that outcome remains unknown, after the Autumn Statement, we know what the government’s plans are in the short term. It looks like it will be business as usual for the construction industry, with some big promises on infrastructure and housing spending but little of the detail (although separately, we heard about HS2’s route and the Cambridge/Milten Keynes/Oxford corridor). Continue reading →

REUTERS | Mukesh Gupta
November 30, 2016

Court of Appeal’s guidance on the Party Wall Act and basement construction

In Gray v Elite Town Management Ltd (unreported), the Court of Appeal considered a number of issues, including section 7(1) of the Party Wall Act 1996 in the context of a building owner’s basement works. The court concluded that there is no absolute obligation on party wall surveyors to authorise a design that causes the minimum of inconvenience to the adjoining owner. The duty under section 7(1) concerns the manner in which construction works are carried out and does not extend to the scheme chosen.
Continue reading →

REUTERS | Ilya Naymushin
November 29, 2016

Should I stay or should I pay now? Adjudication and insolvency

Before anyone objects, I know that I have lifted this title from a blog that Matt wrote in October 2013 but, quite frankly, when writing about stays can you think of a better title? I certainly can’t, so apologies to Matt (and The Clash) for the plagiarism.

When the party seeking to enforce an adjudicator’s decision is (or is thought to be) in financial difficulties, it is common to see the defendant argue that there should be a stay of execution of the summary judgment. The logic is that it will be unfair for the defendant to pay over money now, only to find that, following a final determination of the parties’ dispute, there is no money left to pay the defendant back. It may sound relatively simple but, as Coulson J says in his book (at paragraph 17.20) “this argument can be far from straightforward”.

However, it was an argument that the defendant raised when the matter came before Stuart-Smith J in LXB RP (Crown Road) Ltd v Squibb Group Ltd, albeit on this occasion the defendant sought an order that the money should be paid into court or into an escrow account. Continue reading →

REUTERS | Brendan McDermid
November 25, 2016

Time to party (over that wall) like its 1996

As the incredible rise of our transatlantic wall-building friend sets gently into the twilight of credulity, it provides us with an opportunity to get back to reality with the Party Wall etc. Act 1996 (PWA 1996).

The PWA 1996 remains something of an unusual beast. For an Act that features so heavily in a construction practitioner’s life, there remains very little case law on the subject and even less in the way of procedural guidance. As such, dealing with the PWA’s somewhat arcane drafting can feel like death by immurement.

The particular aspect of the PWA 1996 that I would like to pick up on today is enforcement and, more specifically, the procedure for enforcing payment of sums of money awarded under a party wall award. Continue reading →

REUTERS | Ilya Naymushin
November 23, 2016

But what about my adjudication costs?

Despite the relatively short timetables applied in adjudications, adjudication costs can still be substantial. Significantly, in the absence of an effective agreement to the contrary, the Construction Act 1996 is silent on the issue and makes no provision for the recovery of adjudication costs. Unsurprisingly, and perhaps because adjudication costs bills can become rather huge, over the years parties have deployed various arguments to try and recover their adjudication costs.

The question of adjudication costs can also become more complex where parties are engaged in parallel or contemplated parallel court proceedings. For example, where a party accepts a Part 36 offer, does it have to pay the related adjudication costs? It was this question that was considered recently by Coulson J in WES Futures v Allen Wilson. Continue reading →

REUTERS | Toby Melville
November 22, 2016

The perils of serial adjudication

Major construction projects often result in a number of adjudications between the same parties. It is a hazard of the job, so to speak. Known as “serial adjudication“, it can give rise to a number of issues, not least the question of what the previous adjudicator(s) decided.

While it is easy to say that the decision in adjudication one is binding on subsequent adjudicators (as is the decision in adjudication two and so on), in practice it isn’t always easy to see if the dispute that was referred in adjudication two (or three) was the same as the dispute in adjudication one (and two). As everyone knows, this has led to a considerable body of case law on the question of whether the dispute is the “same or substantially the same“. It is a question that goes to the heart of an adjudicator’s jurisdiction.

The issue of serial adjudication was before me recently, when I had to untangle what was (and what wasn’t) decided by a previous adjudicator. It reminded me of some of the issues in HHJ David Grant’s judgment in Niken Construction Ltd v Trigram Carver Street Ltd. Continue reading →

REUTERS | Ibraheem Abu Mustafa
November 16, 2016

Collateral warranties: you can lead a horse to water…

I met with a client last week to talk over some issues that they are having on some long term consultant framework agreements where they are the “employer”. One particularly thorny issue is that instructions to proceed with a specific call-off under the framework are often resulting in fresh negotiations on the terms of the collateral warranties, and in particular a proposed reduction in the level of PI insurance that the consultant is prepared to offer in relation to the scope of work being instructed.

This is happening despite the fact that the framework already obliges the consultants to give collateral warranties in specified terms and to maintain an agreed level of PI. So what can my client do in this situation? Continue reading →

REUTERS | Dominic Ebenbichler
November 16, 2016

What’s new in the JCT 2016?

Over the last six months, the JCT has been quietly releasing parts of its new 2016 suite of standard form contracts. What started with the Minor Works Building Contracts (July), has now been joined by the Design and Build Contracts (September) and Standard Building Contracts (October), and is soon to be joined by the Intermediate and Major Projects Forms later in the year.

Previous major editions of the JCT introduced substantial changes. For example, the:

By contrast, the new 2016 editions tread very lightly indeed. So, what’s new? Continue reading →

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