Monthly Archives: April 2017

REUTERS | Ivan Alvarado
April 28, 2017

April 2017 digest: adjudication and NEC4

Just when you thought there could be no more surprises as Brexit unfolds, Theresa May popped out of No 10 to announce that there will be a general election on 8 June to bring “strong leadership” to the country. She explained that:

“At this moment of enormous national significance there should be unity here in Westminster, but instead there is division… Division in Westminster will risk our ability to make a success of Brexit and it will cause damaging uncertainty and instability to the country. So we need a general election and we need one now…”

She may say there is “no turning back” from leaving the European Union, but this is a u-turn on a post-referendum election, and a change to the timetable of when general elections should be held. We may not know what the next surprise is, but one thing is clear, we certainly should expect a few more along the Brexit road. Continue reading →

REUTERS | Yves Herman
April 26, 2017

Court considers proper construction and enforceability of exclusion clause under UCTA

Goodlife Foods Ltd v Hall Fire Protection Ltd is a decision of HHJ Stephen Davies (sitting as a High Court judge) on a preliminary issue relating to the proper construction and enforceability of an exclusion clause under the Unfair Contract Terms Act 1977 (UCTA). It was also a decision on an application for permission to amend turning on the meaning of “electrical equipment” under the Electrical Equipment (Safety) Regulations 1994 (the 1994 Regulations) (but I’m not going to look at this point). Continue reading →

REUTERS | Corbis
April 25, 2017

Experts again

Earlier this year it was suggested to me that I should take a look at Irwin LJ’s judgment in EXP v Barker, in part because the topic of experts is a familiar one on this blog.

Time and time again, experts do something (or don’t do something), that causes the judge (whether at trial or on appeal) to question the reliability of their evidence. Previous posts include one on Stuart-Smith J’s judgment in the Ocensa Pipeline Group Litigation, but I’ve also looked at Coulson J’s views of the quantum experts in Van Oord UK Ltd and another v Allseas UK Ltd and, prior to that, I considered Akenhead J’s judgment in Weatherford Global Products Ltd v Hydropath Holdings Ltd and others. However, it isn’t always about performance, as my piece on the judgment in British Airways plc v Spencer and others demonstrates. This post isn’t either. It’s all about who the expert knew, and how well. Continue reading →

REUTERS | Yuriko Nakao
April 21, 2017

Delay caused by variations

This is the final instalment in my series of 12 posts on variations that has run (approximately) every other month for the last two years. I have tried to cover all the key issues that arise, such as whether a variation instruction must be in writing (and how to claim if it isn’t), whether an employer can be under a positive duty to vary the scope and whether a contractor can refuse to carry out an instructed change.

As many of these posts will hopefully have illustrated, while variations are the bread and butter of contractual disputes on a project, it is a subject that raises some fascinating issues that do not always get the attention they deserve.

Possibly the most overlooked issue in this area is the question of how construction contracts deal with delay caused by variations. Continue reading →

REUTERS | Ali Hashisho
April 19, 2017

Assignment: rights about turn?

A couple of years ago, in a post called Guilty as charged? Or how to get rights wrong, I queried the common practice of an employer assigning its rights under the project documents (building contract and appointments) to its funder. Surely the person who needs to enforce these rights is the employer? The interests of a funder (such as a bank) can be adequately protected by way of collateral warranties or third party rights, coupled with a charge over the employer’s rights under the project documents. There is simply no need for an assignment.

I compared this to buying a new car with a loan, only for the bank manager to take away the keys and steering wheel as security, and still insist that the borrower give him a lift back to his branch. Wouldn’t it be better to leave the steering wheel, if you want someone else to drive? The confused rigmarole of such assignments gives no-one what they really need. Continue reading →

REUTERS | Dylan Martinez
April 18, 2017

Oral construction contracts and parties who represent themselves

I’m not sure that parties who represent themselves and issues about an oral sub-contract (or three) are necessarily good bedfellows, as Coulson J recently found out when he had to deal with a challenge to the adjudicator’s decision in RCS Contractors Ltd v Conway.

It’s a short judgment (only 22 paragraphs), but it is a case that demonstrates some of the difficulties that can arise in adjudication. Continue reading →

REUTERS | Lucy Nicholson
April 12, 2017

Excess of jurisdiction or breach of natural justice arguments will succeed only in the plainest cases

In Aecom Design Build Ltd v Staptina Engineering Services Ltd, Fraser J held that an adjudicator had not acted outside of her jurisdiction or in breach of the rules of natural justice by deciding how deductions for alleged defects should be assessed under an NEC Engineering and Construction Short Subcontract.

The decision provides a powerful reminder that adjudication is merely a temporary resolution of any particular dispute and that, only in the plainest of cases, will the court uphold an enforcement challenge on the grounds of excess of jurisdiction or a breach of the rules of natural justice. Continue reading →

REUTERS | Vasily Fedosenko
April 11, 2017

Exclusive remedies regimes: how exclusive is “exclusive”?

Trying to find a way around an exclusive remedies clause is a familiar challenge. The contract provides the parties with the right to make certain claims against each other pursuant to a specified process. There is a clause that provides that the right to make claims under the contract constitutes the parties’ sole and exclusive remedies.

If, for whatever reason, one of the parties cannot utilise the contract’s code for claims, the question arises: is there any way around what seems to be an exclusive remedies regime?

The Court of Appeal’s decision in Scottish Power UK plc v BP Exploration Operating Company Ltd provides a good opportunity to re-visit the applicable principles in an area in which there is a surprising disparity between, on the one hand, the significance of the topic and the frequency with which it arises and, on the other hand, the relative paucity of authority dealing with it. Continue reading →

REUTERS | Mike Hutchings
April 11, 2017

Scottish court rejects allegations of breaches of the rules of natural justice

It’s been some time since we’ve blogged about a case involving allegations of breaches of the rules of natural justice against an adjudicator. However, fear not because the Outer House of the Court of Session’s judgment in Bell Building Projects Ltd v Arnold Clark Automobiles Ltd contains some juicy natural justice arguments. It’s a story of weekend working, last minute evidence and threats of resignation by the adjudicator.

Have I whetted your appetite? Continue reading →

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