Monthly Archives: November 2016

REUTERS | Maxim Shemetov
November 15, 2016

Parties in same dispute jam on M25 contract

I’ve written about expert determination before, but not for some time as it is relatively rare that the courts get to consider this method of dispute resolution. This is probably due to the fact that there are normally such limited grounds on which an expert’s determination can be challenged. Therefore, I was interested to see the judgment in Connect Plus (M25) Ltd v Highways England Company Ltd, where Coulson J had to consider a determination by the now retired former head of the TCC, Sir Robert Akenhead. Continue reading →

REUTERS | Peter Andrews
November 9, 2016

A protocol referee, a new presence on the pitch

What is a protocol referee?

That was the question I asked myself when I saw the agenda for the launch of the new pre-action protocol for construction and engineering disputes and the referee procedure on 2 November. On arrival, I saw the new protocol on which Caroline Pope has commented. I then heard a presentation from Simon Tolson and Alexander Nissen QC, with a summing up by Coulson J.

I now know what the referee is required to do but it remains to be seen how the scheme will operate in practice. It has no parallels in other protocols applicable under the Civil Procedure Rules. Continue reading →

REUTERS | Dominic Ebenbichler
November 9, 2016

Long live the Pre-Action Protocol

Is it really 16 years ago that we users of the TCC first came face to face with the Pre-Action Protocol for Construction and Engineering Disputes? And for all those years most of us have been extolling its virtues as a great tool to assist early settlement of disputes and yet in the same breath moaning about how it has been subject to such dreadful abuse (always by others, never ourselves!). Continue reading →

REUTERS |
November 8, 2016

Adjudication in Ireland is finally a reality

Construction adjudication in Ireland is finally a reality, as the Construction Contracts Act 2013 applies to construction contracts entered into after 25 July 2016.

Over the years, both Jonathan and I have looked at the Act’s progress and, as I was in Dublin a few weeks ago for the latest adjudication and payment claims conference, I thought it was time for another look at what Jonathan once called the “Celtic adjudication tiger“. Continue reading →

REUTERS | Esam Omran Al-Fetori
November 7, 2016

Good faith in construction contracts: a sense of (cross-jurisdictional) perspective

A broad and generally applicable duty of good faith has long been rejected by the English common law. However, as commercial parties to contracts in the Middle East may be aware, the duty of good faith – sometimes referred to as “fidelity to the bargain” – is not only recognised but enshrined within the civil codes of the region. This is, in part, a reflection of the codes’ Egyptian roots, a point I return to below.

In a climate where lack of cooperation and motivation to fulfil the commercial bargain frequently characterise the dispute’s narrative, clients and in-house legal teams in the Middle East need to be prepared to deal with the principle of good faith.

Though often frowned upon when mentioned in an English law setting, it is important to be mindful that even the English courts have, in recent years, sounded-out the possibility of introducing the concept of good faith into contractual dealings. This has tended to be on a piecemeal basis, rather than as a generally applicable doctrine. Continue reading →

REUTERS | Ilya Naymushin
November 2, 2016

Beware the dangers of uncertainty with letters of intent

Alexander Nissen QC’s recent decision in Spartafield Ltd v Penten Group Ltd brings a degree of finality to the long-running dispute between these two parties. It comes after multiple adjudications and previous proceedings in the TCC. Back in March, my colleague Ebony Alleyne discussed what was then the most recent judgment, dealing with the enforcement of an adjudicator’s decision.

The current case represents a final court determination of the disputes that were originally adjudicated. Adjudication is, by its nature, a temporarily binding dispute resolution procedure. This final determination of the issues provides an example of how the process works in action. Spartafield’s attempt to challenge the adjudicators decision at the enforcement stage had been predictably unsuccessful, but the door was always open to issue fresh proceedings and obtain a final determination. Continue reading →

REUTERS | Guillermo Granja
November 1, 2016

“Payment of any final sum… is based on enforcement of the contractual bargain”

Let me begin with an apology. It may not have escaped your notice that the titles to the majority of our recent posts have been quotes from the cases that we’ve written about, so I was loathed to do so again this week. However, when I read the judgment in Kilker Projects v Rob Purton (t/a Richmond Interiors), this sentence jumped off the page at me, so I couldn’t resist using it.

We can add this case to those that deal with merits based valuations following “smash and grab” adjudications (like ISG v Seevic, Galliford Try v Estura and so on). Continue reading →

Share this post on: