Monthly Archives: March 2018

REUTERS | Navesh Chitrakar
March 27, 2018

Witness “was not a reliable historian”

I like reading Fraser J’s judgments. Where else would you get phrases such as “banter in a public house during consumption of a gallon of ale (or lager)” and “quite apart from any illumination of the wisdom (or otherwise) of discussing (still less agreeing) incentive payments of such extraordinary size at an evening of drinking in the Horse & Groom”, nestled in among legal analysis? (He was talking about Blue v Ashley, which I’m sure was an interesting informal business meeting!)

But, back to the point. And that is about witness evidence and what Leggatt J once called the “faulty model of memory as a mental record”.

A few years ago, I wrote about Leggatt J’s comments in Gestmin SGPS SA v Credit Suisse (UK) Ltd. I followed that piece a year or so later with some observations following Jefford J’s judgment in Dacy Building Services Ltd v IDM Properties LLP. That case has been back before the court (as Jonathan discussed last week) and it is where my Fraser J quotes were taken from. Continue reading →

REUTERS | Regis Duvignau
March 20, 2018

Oral construction contracts and issues in adjudication enforcement

Two recent judgments illustrate the difficulties that oral contracts can cause in adjudication enforcement proceedings. The first was Jefford J’s judgment in Hart v Ideal and the second (although actually the first in time) was Fraser J’s judgment in Dacy v IDM (which had also been before Jefford J a couple of years earlier). Continue reading →

REUTERS | Ruben Sprich
March 19, 2018

A birds-eye view of AIFC court practice and procedure

In Kazakh mythology, the great phoenix Samruk laid a golden egg between the branches of a poplar tree and became a symbol of prosperity and happiness for the people of these lands. High above Astana’s beautifully symmetric cityscape, this symbol has been immortalised atop the capital’s viewing platform, the Baiterek Tower.

Having identified some of the key features of the AIFC and its court in my previous article, I intend to take up the birds-eye vantage point of the Samruk and consider some of the interesting facets of the new rules governing the AIFC court’s proceedings. This is not intended to be a comprehensive review of the procedural rules, but merely an introductory insight into some of their distinctive or important features. Continue reading →

REUTERS |
March 14, 2018

Are you being served (electronically)? Email service under the CPR and the Party Wall Act 1996

Two recent cases, one in the Court of Appeal, the other in the Supreme Court, have created significant uncertainty around the acceptability of email service. It seems that there may now be a disparity between the CPR and the Party Wall Act 1996, despite the similarities in the wording of the relevant provisions for the two regimes. Continue reading →

REUTERS | Pascal Rossignol
March 14, 2018

Direct procurement: bringing debt providers into the mix

To date, direct procurement has gained varying degrees of traction in the offshore and onshore electricity, water and rail sectors. In our two previous blogs, we explored what the world of direct procurement may look like in the future and the appetite of equity investors to commit to this new model.

A necessary ingredient

This blog, the third in our direct procurement series, focuses on another fundamentally important aspect of the success (or otherwise) of the direct procurement model – the appetite of debt providers to participate in the new regime. Debt forms an integral part of the capital structure and without it there is no value gain for equity in most investment propositions. Direct procurement may never get off the ground if equity and debt considerations cannot be reconciled. Continue reading →

REUTERS | Gilles Adt
March 13, 2018

Reminder that adjudicator’s appointment lapses if no decision

Some judgments seem destined to be blogged about (at least by me) and Baldwin v J Pickstock Ltd is one such judgment. It’s all about the adjudicator’s decision (or lack of), whether there was an extension of time for reaching that decision and whether the adjudicator had properly resigned and should be paid for the work he did (even though he did not reach a decision). It’s not quite Cubitt Building & Interiors v Fleetglade, but it does demonstrate how adjudicators need to be alive to banana skin tactics, even those coming from the referring party! Continue reading →

REUTERS | Shamil Zhumatov
March 7, 2018

Ambitions for Astana

There is a rising chorus of excitement among international practitioners in London. It centres upon the creation of the Astana International Financial Centre (AIFC) and its court (AIFC court) in the Kazakh capital, which became fully operational in January 2018.

In this post, I consider some of the key features of the new AIFC court and some questions that may arise in the near future about its operation. Given the fact that the legal architecture of the AIFC and its new court are purported to be based on the “Dubai model” of the DIFC, with the assistance of advisers from the Emirate, it may be profitable to make comparisons with the foundational Law No.10 of 2004 (DIFC court law) and I do so where relevant. Further consideration will be given to the procedural code adopted for the AIFC court in a subsequent post. Continue reading →

REUTERS | Ina Fassbender
March 7, 2018

Construction defects – time for clear thinking

Construction disputes, whether they arise from inadequate welding in offshore installations or bubbling paint, frequently revolve around the question of whether part of the works carried out has a “defect“. We rarely stop to consider when drafting construction contracts how, legally, we can define inadequate or non-conforming work, despite the fact that ambiguity often leads to intractable disputes. Continue reading →

REUTERS | Rafael Marchante
March 6, 2018

Does Grove v S&T herald the dawn of a new regime for payment notice disputes?

Unless you have been hiding under a rock (or have been on holiday somewhere), you can’t have failed to notice that Coulson J has handed down his last substantive TCC judgment. So much has already been written about Grove v S&T and what it means for the construction industry that there’s barely been room for anything else on my Twitter and LinkedIn feeds. There really is nowhere to hide from all the commentary.

However, I make no apology for adding to the already voluminous commentary because the case is of such importance. I don’t agree with those that consider the case spells the end for smash and grab adjudications, and I want to focus on a point that doesn’t really seem to have been covered in great detail by others, namely what the judgment means in terms of parties having to pay up (and pay up before any merits-based adjudication takes place).
Continue reading →

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