Elizabeth Gilbert:
“The only thing more unthinkable than leaving was staying; the only thing more impossible than staying was leaving.”
Although it is hard not to mention the government formally triggering Article 50 this month, it is not the purpose of this review to keep you up-to-date with the minutiae of Brexit events. For that, you can check out our Brexit landing page and key developments tracker. Continue reading
In PGF II SA v OMFS Company 1 Ltd, in addressing the question of unreasonably refusing to participate in ADR, Briggs LJ made the link between parties engaging with the ADR process and, in doing so, addressing the question of when ADR should take place.
Two recent dilapidations cases demonstrate that parties must now consider much more closely the question, when should we mediate? Continue reading
It’s been a busy time in the Cope household recently, what with the arrival of my baby daughter. However, I’ve now managed to catch up on a few of the TCC’s recent judgments. One of those was Jefford J’s judgment in Symbion v Venco. Although ostensibly about an application under section 68 of the Arbitration Act 1996 to set aside or vary an arbitration award because the tribunal failed to deal with all the issues that were put to it, the bit that really caught my eye starts at paragraph 76. Continue reading
Everyone knows that NEC contracts are different. Their fans and detractors are both quick to tell us. And no NEC clause is quite so eye-catching as clause 10.1. Famously it says (in its ECC form):
“The Employer, the Contractor, the Project Manager and the Supervisor shall act as stated in this contract and in a spirit of mutual trust and co-operation.”
Every time we think the courts might have given defendants in adjudication enforcement proceedings slightly more latitude in raising their dissatisfaction with an adjudicator’s decision, the court brings us back down to earth with a bump and reminds us that, in fact, no matter how hard done by our clients feel, they will have to “pay now and argue later”, save in the rarest of cases.
In Hutton Construction v Wilson Properties, Coulson J got to grips with disavowing us of the encouragement we all thought he’d given us in Caledonian Modular Ltd v Mar City Developments Ltd. The message from that case was that it was permissible for dissatisfied defendants to ask the court for a declaration to determine issues of substance that had been decided in the adjudication, so long as the declarations sought related to short and self-contained points. This could either be done pre-emptively or alongside an application to enforce a decision by way of summary judgment.
Of course, this is something different to the defendant’s right to raise a properly preserved jurisdictional challenge or challenge based on a breach of natural justice, which are not concerned with the rights and wrongs of the underlying substantive decision. Continue reading
It may not be the most snazzy title, but how best to described the intricacies of Coulson J’s judgment in Costain Ltd v Tarmac Holdings Ltd?
I could say it was all about Tarmac’s application to stay court proceedings to arbitration (under section 9 of the Arbitration Act 1996), or that the case turned on whether the grounds in section 9(4) (that the arbitration agreement was “null and void, inoperative, or incapable of being performed”) were made out. Either way, there is a lot in the 140 odd paragraphs to talk about. Continue reading
There is no overarching statute governing mediation in England and Wales. Instead, a party who wants to know about mediation must turn to the civil procedure rules, court guides and the (now) many judgments that talk about it.
Ireland is taking a different approach. Currently, the Oireachtas is considering the Mediation Bill 2017, a 24-page document that seeks to codify the mediation process and dovetail it with the courts.
Some provisions in the Bill aren’t commonplace in England and Wales. However, the fundamental principles of mediation do appear, namely the encouragement of mediation (and its voluntary nature), costs penalties for those that unreasonably refuse and confidentiality.
This blogs looks at those principles and how the Mediation Bill treats them. Continue reading
In my previous two posts I provided an introduction to the Party Wall etc. Act 1996 (PWA 1996) and a brief outline on the agreement of a party wall award where a dispute arises.
In this third post I address some of the more complex aspects of the PWA 1996, including access rights, costs, expenses and special foundations. Continue reading
As some of you may well have seen, the second edition of the Construction Industry Council’s Users’ Guide to Adjudication has now been published, and not before time. The first edition was published in 2003, when most of us were still using the original Nokia 3310. I have said a couple of times in past blogs that an update was well overdue (perhaps the esteemed members of the CIC read my blogs?). This was particularly the case given that the first edition was based on the un-amended Construction Act 1996, and consequently stated that the provisions of the Act only applied to construction contracts in writing. Continue reading
At least that was the view of Fraser J in his concluding remarks at Adrian Williamson QC‘s SCL talk earlier this week (and, yes, I did warn Peter that I was going to quote him). Adrian was discussing payment under the Construction Act 1996 and was highlighting where we currently are, when it comes to payment and pay less notices.
After a quick canter through the provisions of the Construction Act 1996, as originally drafted, and the amendments that came into force in 2011, Adrian turned his attention to the case law. He choose to start with ISG Construction Ltd v Seevic College, and then highlight a number of cases that he considered have made inroads into the principles that Edwards-Stuart J established in ISG.
Please note that much of what follows should not be directly attributed to Adrian. His talk was not recorded and I simply can’t write that fast! I have “borrowed” his idea and structure (and a few of his comments), and elaborated on them with some of my own. Continue reading
