A client recently called me in a panic. Their contractor had discovered a protected species of bird had set up home in the exact spot where they needed to carry out the next phase of works at one of their sites. No one on site was entirely confident on what the appropriate next steps should be and so the client, concerned about the potential consequences, had immediately instructed the contractor to suspend works and asked me to investigate. Continue reading
I liked the classics at school and did rather well in them. When I last wrote about ICI v MMT, I referred to Hercules and Hydra. This time, I’m delving further into Greek mythology, with reference to Scylla and Charybdis, which is used in the context of the idiom “being between Scylla and Charybdis”. It means “having to choose between two evils” and is a bit like more well-known idioms such as “between the devil and the deep blue sea” and “between a rock and a hard place”.
It came to mind when I was reviewing some of Fraser J’s comments about the expert evidence in ICI v MMT. Continue reading
The TCC does not like blocking ongoing adjudications or interfering in their conduct. To date, it has only done so in a few unusual cases. Recently, however, it has found a good reason to prevent an adjudication from proceeding, which could be of very wide application. Continue reading
Concurrent delay is something that the courts tell us is exceedingly rare. And yet, it is a subject which can occupy much time when parties are in dispute about entitlement to an extension of time.
The Court of Appeal has now considered whether parties to a construction contract can decide how to apportion risk in the event of concurrent delay. The question for the court was whether such clauses offend the prevention principle and cause time to be at large. Continue reading
For the first time in quite a while I am in the enviable position of having more than one adjudication enforcement case to choose to write about this week. In the end I plumped for Beach Homes v Hazell and Hazell as it raises some interesting points about bespoke dispute resolution clauses. It is a judgment of Mr Jonathan Acton Davis QC, one of the army of Deputy High Court judges currently sitting in the TCC. Continue reading
Recent cases, including the Court of Appeal’s judgment in Bou-Simon v BGC Brokers LP and the (as yet unreported) case of Harrow LBC v Engie Regeneration (Apollo) Ltd (2018) (TCC), provide a useful reminder of the strict constraints on implying terms into a commercial contract.
Courts can imply terms into a contract in order to fill a gap in the drafting, thereby ensuring that the contract reflects the contracting parties’ intentions. However, these recent decisions have reinforced the limitations and rules governing this power to imply terms. Continue reading
As construction lawyers, most of us have had experience with claims concerning the financial loss and/or damage to property arising from a negligent survey of a house. The facts of such cases tend to follow a pattern:
Often, the cost of addressing such problems, once discovered, is prohibitive, prompting homeowners to bring claims against their former surveyor in breach of contract and/or negligence. Assuming that the failure to spot a particular risk gives rise to liability, the next question facing the court is the appropriate measure of loss.
The recent judgment of Birss J in Moore and another v National Westminster Bank provides welcome clarity to this area of law. While the judgment faithfully applies the long-standing ratio of Philips v Ward, it misses the opportunity to critically analyse a counterintuitive line of authorities and provide guidance as to when they can be disapplied. Continue reading
