Practical Law

For those of you not old enough to remember, back in the 1980’s, Frankie goes to Hollywood released a song called “Two Tribes”, which featured the line, “When two tribes go to war”. Having recently read Fraser J’s judgment in ICI v Merit and Coulson J’s judgment in Bank of Ireland v Watts, and given their comments about experts, it seemed apt to borrow from the song for my title. (Arguably it should have been three judges if we take into account Stuart-Smith J’s comments in 25 OBS (Nominees1) v Lend Lease, but that spoils the title!)

This post focuses on what Coulson J had to say about experts in Bank of Ireland v Watts, I’ll save ICI v Merit (and the project monitoring angle in Bank of Ireland) for another day (and will leave others to share their thoughts on 25 OBS (Nominees1) v Lend Lease).

It isn’t the first time Matt or I have commented on the behaviour of experts (for example, see Twelve reasons why expert’s evidence was “entirely worthless” and Experts again), and it certainly will not be the last! Continue reading →

Earlier this year, I wrote about O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd. That case was all about legal and equitable assignment.

The parties have now been back before the court, this time in front of Coulson J, and have been arguing about the scope of two adjudications. The first concerned Mailbox’s claim for liquidated damages (which O’Farrell J had previously considered and I wrote about), the second was about Galliford Try’s subsequent extension of time claim.

As I’m sure you are thinking, it all boiled down to a question of what the crystallised dispute was and whether the second adjudicator had jurisdiction. Continue reading →

Although I have never done so myself, it is clearly acceptable for an adjudicator to ask parties to comment on a case or other point of law that neither has mentioned in their submissions. It is also clearly acceptable for an adjudicator to ask parties to expand on and/or clarify contentions made in their submissions, and this is something I do regularly. Indeed, I think that it is essential for adjudicators to ask parties to clarify points where they are uncertain as to the meaning of parts of the submissions. Otherwise, how can an adjudicator ensure that the process is fair? This is particularly so given that the vast majority of adjudications these days proceed on a documents-only basis.

It was with this is mind that I read with interest Turner J’s judgment in Miley v Friends Life Ltd. Turner J was dealing with the defendant’s application to recuse himself on the grounds of apparent bias. It arose following an email he had sent to the parties identifying issues that he wanted assistance on. Continue reading →

When I was reading Stuart-Smith J’s judgment in Lobo v Corich, I started thinking about the different types of party that come to adjudication, or get embroiled in the process as a responding party. As you might imagine, not everybody takes part enthusiastically. In fact, some could be said to be extremely reluctant.

As Lobo v Corich demonstrates, attempting to bury your head in the sand is not a sound tactic. (Apparently it wouldn’t be very good for an ostrich either, as it wouldn’t be able to breathe!) Continue reading →