Monthly Archives: October 2017

REUTERS | Jacky Naegelen
October 31, 2017

October 2017 digest: Construction Act review and B&PCs

Francis Bacon, The Essays:

“Read not to contradict and confute; nor to believe and take for granted; nor to find talk and discourse; but to weigh and consider. Some books are to be tasted, others to be swallowed, and some few to be chewed and digested: that is, some books are to be read only in parts, others to be read, but not curiously, and some few to be read wholly, and with diligence and attention.”

October has been a busy month, with lots of interesting developments, not least a consultation to review the Construction Act 1996 and one to review the use of retentions in the construction industry. We’re not sure if anyone else remembered the government’s promise to review the effectiveness of the changes introduced in October 2011 after five years (and it has taken them six), but it will be interesting to see the results. You have until 19 January 2018 to respond, just a few months before the Act celebrates its 20th “in force” birthday. Continue reading →

REUTERS | Jonathan Drake
October 31, 2017

Is the notice an adequate agenda for an adjudication?

When it comes to the adequacy or otherwise of a pay less notice under the Construction Act 1996, I was reminded the other day of something that Alexander Nissen QC (sitting as a Deputy High Court judge) said in Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) Ltd, namely that it is a question of whether the documents supplied can provide “an adequate agenda for an adjudication“. If there is nothing more the contractor needs to know when it receives documents from the employer (or its agent), then it can. Alexander was borrowing his words from Akenhead J in Henia Investments Inc v Beck Interiors Ltd, and I’m going to borrow them for the purposes of this post.

I mention this because of Lord Bannatyne’s judgment in Muir Construction Ltd v Kapital Residential Ltd. Continue reading →

REUTERS | Issei Kato
October 30, 2017

Contributory negligence and construction contracts

A plethora of issues were raised, and disposed of, by Fraser J’s recently handed-down judgment in Riva Properties and others v Foster + Partners Ltd, the most awkwardly entertaining one being the sense of pantomime arising from the court’s clear disapproval of the architect’s behaviour, which was described at various stages as “grubby”, “disingenuous” and “wholly unprofessional”.

Putting pantomime reluctantly to one side (or perhaps “behind you…”), the crux of the case was that Fosters had been negligent when they advised their client that a design that would cost £195 million to carry out and complete could be “value engineered” down to £100 million, a mere £25 million more than the client’s original budget of £75 million. The expert evidence was that such value engineering would have been impossible and the judge awarded the claimant, or at least the first claimant, just over £3.5 million for the professional fees wasted on account of the negligence advice. The rather heftier claim for loss of profits (around £16 million), was dismissed on the basis that the claimant’s inability to secure funding for the project was partly attributable to his lack of cash reserves and to the 2008 global financial crisis.

However, I want to turn my attention to a relatively small aspect of the judgment concerning the defendant’s plea of contributory negligence and take the opportunity to remind us when it is possible to raise contributory negligence in the context of construction claims. Continue reading →

REUTERS | Thomson Reuters Global Creative Services
October 27, 2017

The value of obiter in the TCC

Melissa Moriarty’s recent blog post covered the complex subject of delay. It also touched on something seemingly simple: the difference between the ratio and obiter elements of a judgment. So how is it that lawyers manage to disagree about this elementary distinction and why does it matter?  Continue reading →

REUTERS | Supri
October 25, 2017

Amending FIDIC contracts: practical issues

Drum roll please… In case you haven’t heard already, FIDIC has announced that second editions of the Red, Yellow and Silver Books (1999 Suite) will be released at the FIDIC International Contract Users’ conference in London in December. I’ll be covering those in future blogs but in the meantime, in this second instalment, I look at some of the issues that arise in practice when users amend a FIDIC contract as well as FIDIC’s proposed new “Golden Principles”. Continue reading →

REUTERS | Navesh Chitrakar
October 24, 2017

Adjudicator’s time spent on multifaceted dispute was reasonable

Getting paid is a subject that is close to everyone’s heart. It is probably why I have blogged about payment so much over the years, from the early days when I considered when I would get paid to my most recent piece about adjudicators’ T&C’s. Along the way, I’ve looked at a variety of other topics, such as at what point an adjudicator should start incurring fees.

I have also considered some key judgments, such as Linnett v Halliwells LLP, Fenice Investments Inc v Jerram Falkus Construction Ltd, PC Harrington Contractors Ltd v Systech International Ltd and Christopher Linnett Ltd v Harding (t/a M J Harding Contractors). Even if you don’t remember the cases, the principles are likely to be familiar (or, at least, I hope so!).

Therefore, it should come as no surprise that this week I’m turning my attention to HHJ Davies’ judgment in The Vinden Partnership Ltd v Orca LGS Solutions Ltd. Continue reading →

REUTERS | Ueslei Marcelino
October 18, 2017

Ignore the procurement dispute timetable at your peril

The parties to procurement challenges are required to act quickly and in accordance with a strict timetable.

When a losing bidder issues a claim, it must serve the claim form on the defendant within seven days after the date of issue. Pursuant to CPR 7.4(2), the particulars of claim are to be served no later than the latest time for serving the claim form. That is, they must also be served within seven days after the date of issue.

The difficulties faced by a losing bidder in complying with this timetable are compounded by the fact that it is in a uniquely difficult position because the reasons for its failure are within the peculiar knowledge of the public authority. Losing bidders must therefore often plead their claims in broad terms without sight of key documents that the defendant may disclose later in the proceedings.

However, these difficulties are not an excuse for non-compliance with the timetable. In Cemex UK Operations Ltd v Network Rail Infrastructure Ltd, the TCC re-emphasised the importance of complying with the timetable and the risks associated with non-compliance.  Continue reading →

REUTERS | Pauline Askin
October 18, 2017

Injunction prevents consultant holding client to ransom on BIM

Building information modelling (BIM) has been steadily gaining traction in the construction industry over the past few years and the prediction back in 2011 from the UK Government’s Chief Construction Adviser, that professions which failed to adopt BIM risked being “Betamaxed out” is ringing eerily true. And it’s not only centrally procured projects that are using Level 2 BIM in line with the government edict. Certainly, on many of the commercial developments that are coming across my desk, BIM tends to be part and parcel of the contract.

We all know that BIM raises various legal issues, particularly around design access and ownership. While the technology is still in its relative infancy at Level 2, these fledgling points can normally be dealt with by tweaks to drafting and the incorporation of a BIM protocol. Of course, with the potential of a further jump to BIM Level 3 in the not too distant future, true integration may raise a whole new host of legal issues.  Continue reading →

REUTERS | Eric Vidal
October 17, 2017

Can a party withdraw from adjudication part way through and what are the implications?

After a summer of writing about arbitration and experts, it is nice to turn my attention to adjudication for a change. As the observant will realise, this is my second adjudication case in a row!

Jacobs UK Ltd v Skanska Construction UK Ltd was a dispute all about the adequacy of Jacobs’ design services, which related to street lighting in Lewisham and Croydon. It highlights some interesting issues related to whether a party is entitled to withdraw from an adjudication and then start again. Continue reading →

REUTERS | David Bebber
October 11, 2017

Another “nail in the coffin” for the prevention principle?

On the face of it, the judgment in North Midland Building Ltd v Cyden Homes Ltd is one to which you might say “so what”? The parties agreed in their contract to disregard the effect of any concurrent delay in assessing the contractor’s entitlement to an extension of time. Surprise surprise, the court gave effect to the amendment. You can envisage the headline:

“Court gives effect to parties’ agreement, yet again”.

However, the judgment is much more interesting for construction lawyers, as it provides guidance on some of my favourite quirks of construction law: concurrent delay, time at large and the prevention principle. Continue reading →

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