Monthly Archives: December 2016

REUTERS |
December 30, 2016

December 2016 digest: e-filing and Canary Wharf

Shakespeare, Sonnets:

“How like a winter hath my absence been from thee, the pleasure of the fleeting year! What freezings have I felt, what dark days seen! What old December’s bareness every where!”

December is often a quiet month in current awareness terms, and this month was no exception. The government’s appeal to the Supreme Court on Article 50 dominated the news while it was being heard, although we will not know the outcome until early next year. There was still plenty of other Brexit news, including a call for evidence on what transitional arrangements ought to apply. Continue reading →

REUTERS | Michaela Rehle
December 21, 2016

Is the TCC’s approach to summary judgment in adjudication enforcement changing?

As we are all in the process of opening our annual referral notice Christmas presents, I thought you might welcome a brief distraction by considering whether anyone will be able to enforce the pending decision in the New Year. Perhaps surprisingly, 2016 has seen some developments on this front that practitioners need to bear in mind. Continue reading →

REUTERS | Rupak De Chowdhuri
December 20, 2016

Who are the parties to a contract?

Reading the judgment in Dacy Building Services Ltd v IDM Properties LLP, it reminded me of just how tough it can be being an adjudicator, albeit you may not know this when you accept an appointment. At that stage, you have only seen the notice of adjudication, so you only have one party’s take on the dispute you are being asked to decide. Things are seldom clear cut and will often change, as the adjudicator discovered in this case. Continue reading →

REUTERS | Gleb Garanich
December 19, 2016

You can recover (some of) a claims consultant’s costs (some of the time)

Parties often choose to be represented by claims consultants during the adjudication process. If the unsuccessful party in the adjudication does not pay up, it is often the case that a consultant’s involvement will continue beyond the adjudication proceedings.

The question of whether the costs of such involvement may be recovered in court proceedings was recently considered by Jefford J in Octoesse LLP v Trak Special Projects Ltd. Continue reading →

REUTERS | Ivan Alvarado
December 14, 2016

FIDIC Rainbow Suite: what do the new editions hold in store?

There was a full house at the FIDIC International Contract Users’ Conference 2016 which took place in London on 6 and 7 December 2016.

The FIDIC conferences always attract a large international audience. However, this year there was an additional draw; a special pre-release version of the second edition of the FIDIC Yellow Book was unveiled.  Continue reading →

REUTERS | Kham
December 13, 2016

JCT payment changes and summary judgment

A few weeks ago I read with interest Peter Brogden’s blog on some of the key changes included in the JCT’s 2016 suite of contracts. Of particular interest were his comments on payment, where he identified three main changes, including how a “common valuation date” will operate across the supply chain. This obviously depends on every party using the appropriate JCT standard form contract or sub-contract, and not amending the payment clauses. I sincerely hope that parties are sensible and adopt the unamended versions of the new JCT contracts, but the pessimist in me anticipates that the temptation to amend will be too great.

Peter also noted another much smaller change, tucked away in clause 4.11.7 (at least in the SBC), namely that any unpaid amount and its simple interest “shall be recoverable as a debt”. Under the previous edition of the SBC it was only the final payment and interest that could be recovered as a debt, and not unpaid amounts arising from interim payments. As Peter noted:

“This opens up summary judgment as a faster means to get cash-flow moving on an ongoing project.”

It was that bit of his post that really got me thinking. Continue reading →

REUTERS | Brian Snyder
December 13, 2016

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2016 next week, to arrive in your inbox on Thursday 22 December 2016. We are then taking a break until the new year.

The first email of 2017 will be sent to arrive in your inbox on Thursday 5 January 2017. This email will include reports of all developments since 21 December 2016, as well as Practical Law’s looking forward to 2017 pieces.

Merry Christmas and a happy new year from Practical Law.

Practical Law Practical Law Construction
REUTERS | iStockphoto
December 7, 2016

Are oral variations worth the paper they aren’t written on?

The recent decision in Zvi Construction Co LLC v Notre Dame University (USA) in England has been commented on in terms of its decision on expert determination. However, there is more to that case. A key issue turned on the reliance that could be placed on a clause that prevented any variation (or waiver) of the terms of the agreement from being effective unless:

“it is in writing and signed by or on behalf of the party against which the enforcement of such modification, alteration or waiver is sought.”

I will refer to such a clause here as an “in writing” clause. The provision for expert determination was said to have been orally agreed and not recorded as required by that clause. Continue reading →

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