Dylan Thomas, A Child’s Christmas in Wales:
“It was snowing. It was always snowing at Christmas. December, in my memory, is white as Lapland, though there were no reindeers. But there were cats.”
December has been another grey and damp month, with a few falls of snow (even here in London). It has been enough to keep most people indoors, and we have had plenty to tell you about. Continue reading
Lewis Carroll, Through the looking-glass:
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less’.”
A selection of the more interesting decisions affecting construction and engineering practitioners during the final quarter of 2017. Continue reading
He wears red and white for important occasions and expects us all to behave. Yes, this year’s Christmas quiz is a tribute to Coulson J, soon to leave the TCC for the Court of Appeal.
Not only did Coulson J deliver some of this year’s most important judgments, he did so with his customary style. Along with the usual legal questions, many of this year’s teasers refer to his pronouncements. How many can you remember? Continue reading
Nearly 20 years after the Construction Act 1996 was introduced to stamp out bad payment practices, you would be forgiven for thinking there must be a voluminous pile of case law in relation to the all-important final account. But you would be disappointed. While there is plenty of guidance from the TCC on interim payments, the courts have not had much to say about final accounts, particularly post 2011.
This is why Systems Pipework Ltd v Rotary Building Services Ltd is so welcome. Coulson J draws together the authorities on interim and final account payments and concludes (in a characteristically clear and to the point judgment) that the same rules apply to both. Continue reading
One of the fears relating to adjudication is that a referring party will attempt to achieve success by grinding the responding party down through serial adjudications until it achieves the result it wants or the responding party gives in. In Benfield Construction Ltd v Trudson (Hatton) Ltd, Coulson J issued a clear warning that such an approach would not be condoned, stating:
“Allowing one party to raise one legal issue at a time, in serial adjudications extending over many months or even years, until that party achieved a result that it liked, would place an intolerable burden on the other party. It was not the purpose for which adjudication was designed.”
In the latest round of litigation between Mailbox (Birmingham) Ltd and Galliford Try Building Ltd, the court had to consider a similar argument, but this time in relation to whether a responding party could run piecemeal defences. Coulson J held that, in this case, the responding party had to run the whole of its defence.
The decision can be seen as a further attempt by the court to try and ensure that an adjudication deals with all the issues relevant to a dispute in order to provide a temporarily binding decision that is not subject to successive challenges in future adjudications. On that basis, it is to be welcomed. Continue reading
As an adjudicator you don’t often get involved with what happens between the parties after you have issued your decision (unless they appoint you again), although you are always on the look-out to see whether you’ve been enforced or whether your decision has been successfully challenged. Irrespective of whether you are kept in the loop by the parties, the heart rate still rises when you click on the BAILII link for the first time.
I’m sure the second adjudicator in Actavo UK Ltd v Doosan Babcock Ltd had that feeling recently, and will probably again, if the Part 8 hearing judgment is made available. Continue reading
They have arrived! On 5 December 2017, FIDIC launched the second editions of the three major forms of contract in the FIDIC rainbow suite at the FIDIC International Users’ Conference in London. There are enough changes to fuel discussions for years to come and I will be exploring key changes and what it means for users of FIDIC contracts in future blogs. For now, in this third instalment of my series of blogs on FIDIC contracts, I consider some of the key changes and give some initial thoughts. Continue reading
In DC Community Partnerships Ltd v Renfrewshire Council, Lord Doherty held that the adjudicator failed to exhaust his jurisdiction when he failed to deal with a set off defence (which was pretty clear cut). While that part of the judgment is what immediately jumps out at you, to my mind the really interesting part is the fact that the judge found that the employer (Renfrewshire Council) did not need to serve a pay less notice in order to have delay damages set off. Continue reading
Following business as usual this week, Practical Law Construction will send its last email of 2017 next week, to arrive in your inbox on Thursday 21 December 2017. We are then taking a break until the new year.
The first email of 2018 will be sent to arrive in your inbox on Thursday 4 January 2018. This email will include reports of all developments since 20 December 2017, as well as Practical Law’s 2018 looking forward pieces.
Merry Christmas and a happy new year from everyone at Practical Law.
Bates and others v Post Office Ltd is an interesting group litigation involving over 500 claimants. In it, Fraser J has given the parties a stern warning about why he is not going to fix hearings to take account of counsel’s availability. It got me thinking about how adjudicators should deal with the unavailability of representatives and, indeed, witnesses. Continue reading
