Shakepeare, Sonnets:
“Shall I compare thee to a summer’s day? Thou art more lovely and more temperate: rough winds do shake the darling buds of May.”
It isn’t often that we resort to Shakespeare on this blog and, given the wind and rain of early May, something from the Tempest may have been more apt. However, temperatures are rising as the sun is shining and so it seemed apt to start on a sunny note! Continue reading
A couple of years ago I blogged about the Court of Appeal’s decision in Gard Marine and Energy Ltd v China National Chartering Company Ltd, a rather complicated charterparty case. In that blog I noted that the Court of Appeal agreed with my view that insurance and subrogation can be a tricky business. The Supreme Court has now given its decision in this case and it seems they too are of the same view: the judges were split 3:2 on the issue.
Co-insurance is particularly relevant to the construction industry because of the multi-party nature of building projects and the many different insurable interests that co-exist in the same asset(s). As Lord Sumption pointed out in his judgment:
“The business context in which this has most commonly arisen is the co-insurance of employer, contractor and subcontractors under standard forms of building contract.”
The judgment means that the courts are more likely to interpret insurance clauses as relieving a party of liability for matters within the scope of the policy, even if insurance is not effected or there is a shortfall in insurance proceeds. Continue reading
We don’t often see cases where a party has issued a winding-up petition to get paid, rather than adjudicating its payment dispute. Perhaps it is because it is usually an unsuccessful way of getting paid, as was demonstrated recently in Breyer Group plc v RBK Engineering Ltd, which was heard by Daniel Alexander QC in the Chancery Division. Continue reading
In Costain v Tarmac, the TCC set out useful guidance on the application of the duty of good faith and clause 10.1 of the NEC3 conditions.
The court found that Costain had not made out its case on estoppel in relation to Tarmac’s limitation defence, but it went on discuss whether the existence of a mutual trust and cooperation obligation (which the court likened to an express duty of good faith) affected that assessment. In this case on the facts it did not, but it shows that the court will consider such duties.
The judgment is of interest because although NEC3 is one of the most prevalent forms of contract in the construction industry (particularly as far as government infrastructure projects are concerned), there has been relatively little case law showing how the courts will apply the duty to act “in the spirit of mutual trust and co-operation” and/or express obligations of good faith generally. Continue reading
The Court of Session has issued new requirements for commercial actions. These requirements took effect from 27 March 2017 and highlight a change in emphasis for alternative dispute resolution in Scotland.
The new requirements only apply to commercial actions in the Court of Session. The definition of a commercial action is wide. Broadly speaking, a commercial action includes any transaction or dispute of a commercial or business nature. Construction disputes would usually be classified as commercial actions.
Under the Rules of the Court of Session, there is a specific procedure governing commercial actions. The purpose of this procedure is to streamline the court process to allow more management by the judge, which will hopefully result in a quicker and more cost effective resolution of the dispute. Continue reading
The title of this post comes from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”
Lazarus was a landlord and tenant case, where one of the issues was whether the landlord had carried out repairs to the value that was being claimed from the tenant.
In my view, there are certainly parallels to be drawn with some of the adjudications that I’m seeing nowadays, where parties are arguing that an otherwise valid payment notice should not be complied with because of fraud. Continue reading
The court has jurisdiction to make charging orders over property, shares or other interests by virtue of section 1 of the Charging Orders Act 1979 (COA 1979).
In construction claims, a charging order can be an appropriate method of enforcing, or at least securing, a judgment where there is a risk that the judgment debtor may go insolvent. Continue reading
It has been almost a month since electronic working became compulsory for professional users of the Rolls Building courts, soon to be called the Business and Property Courts, which Paul Darling OBE QC discusses this week. This has come as a shock to many people, although we have been using the scheme for nearly two years in the TCC (as Jennifer Varley discussed in her blog, Electronic working in the TCC: is the ball in our court now?). We have embraced it, finding that it saves time and costs as well as large amounts of photocopying. Continue reading
We haven’t seen a case referring to approbation and reprobation for quite some time, at least not in a substantive sense (I know, I checked). Therefore, I read with interest HHJ McKenna’s judgment in Dawnus Construction Holdings Ltd v Marsh Life Ltd, where the court held that by inviting the adjudicator to exercise his powers under the slip rule, Marsh Life had:
“… waived or elected to abandon its right to challenge enforcement of the Decision since it had elected to treat the Decision as valid.”
How things might have been different if Marsh Life had made an express reservation of its rights. Continue reading
In the last few months, there have been a number of developments in the court system of considerable potential importance to technology and construction practitioners.
A new grouping, the Business and Property Court, has been formed by the judiciary. This essentially comprises the Chancery Division, the Commercial Court and the Technology and Construction Court (TCC). The media release that announced this decision described the new entity as a:
“… single umbrella for Business Specialist Courts across England and Wales.”
