It is well known that practical completion is often easier to recognise than it is to define, which is why the Court of Appeal’s judgment in Mears Ltd v Costplan Services (South East) Ltd and others is an important read for construction practitioners.
It was an appeal from Waksman J’s December 2018 judgment, which was dismissed, and is the first time in 50 years that the Court of Appeal has considered the meaning of “practical completion”. Continue reading
2014 was a simpler time. England crashed out of the World Cup in the group stages, a robot made the first ever landing on a comet, and the European Medicines Agency (EMA) signed a 25-year underlease (the lease) with the Canary Wharf Group for its headquarters in London.
Three years later, the Prime Minister formally invoked Article 50. This began the legal process of British withdrawal from the European Union. Citing Regulation 2018/1718, EMA relocated its London office to Amsterdam and wrote to Canary Wharf, informing them that it would treat Brexit as a frustration of the lease. Aggrieved by this decision, Canary Wharf sought a High Court declaration that the lease would not be frustrated by Brexit.
Why does this case matter to the construction industry? Because it concerns a decision on the rarely used doctrine of frustration, and the judgment contains a very useful summary of the principles of frustration that are equally applicable to construction contracts. Continue reading
When I wrote about Coulson LJ’s judgment in Bresco v Michael J Lonsdale, Cannon v Primus back in January, I said that I thought the waiver points applicable to jurisdictional reservations were:
“… of greatest use to parties and those representatives who deal with adjudications on a day to day basis. After all, how often do adjudications involve insolvent parties? I certainly haven’t dealt with one for some time now. By contrast, I see general (and specific) reservations all the time.”
Fast-forward two months and it seems that, for once, my crystal ball skills are effective, as O’Farrell J has applied Coulson LJ’s principles on the reservations a party made (both general and specific) on two occasions: Ove Arup v Coleman Bennett and Donald Insall Associates Ltd v Kew Holdings Ltd. Continue reading
Imagine this: a contractor undertakes to perform certain works by a specified date, and agrees to pay liquidated damages (LDs) if it does not complete by that date (subject to any entitlement to an extension of time). The contractor, through its own fault, is late and does not complete by the specified date. In fact, the contractor is very late and, in the end, the employer terminates the contract before the works are completed (as it is entitled to do under the contract).
For those of us involved in the construction industry, this scenario does not require too much imagination.
In my previous blog post, I said that whether LDs could be recovered after termination of the contract would appear on my hypothetical construction law exam paper. I was concerned about how and whether the unlucky student sitting this exam question would get to the right answer.
It turns out that there was a more fundamental problem – I asked the wrong question. The recent Court of Appeal decision in Triple Point Technology Technology Inc v PTT Public Co Ltd shows that I should have asked whether LDs are recoverable at all in the event of termination. Continue reading
It’s over a year since the second editions of the Rainbow Suite were published and the recent conferences in London and the Middle East provided a forum to reflect on the changes. Indeed, this was reflected in the respective agendas. There were sessions dedicated to responding to commentary on the second editions and also to comparisons with other “international” standard forms. Errata for the Second Editions were also published in December 2018, picking up on largely typographical points.
One year on, the conversation has changed from considering the changes from an academic, theoretical perspective to whether and how they might be applied in a more practical context. Understandably, given the extent of the changes in the second editions (particularly when compared, for example, to the “light touch” approach adopted by NEC in the NEC4 update, and its subsequent round of amendments), it is still early days. However, there are indications that the first contracts based on the second editions have been awarded – or at least are being seriously considered for new projects. For most, though, the benefits of greater clarity and certainty that the drafters have sought to provide are still being evaluated against the consequential increase in complexity and decrease in flexibility, and the advantages of using the tried-and-tested 1999 forms. Continue reading
A few weeks ago I was finishing a paper on fraud, which was based on a SCL talk that I’d given a little while before. Some of you may have been there. I have to confess that it is a lot easier blogging than it is writing one of those papers: the word count is a killer! Anyway, I digress. The reason I’ve mentioned my paper is because, just as I was getting to the end of it, Alexander Nissen QC’s judgment in BM Services Inc Ltd v Greyline Builders Ltd became available and fraud was a key issue in the enforcement proceedings that he dealt with.
I thought I’d better take a look and share my thoughts on what I think is a good example of the courts applying established guidance in cases of fraud and adjudication. Think cases like SG South v King’s Head Cirencester, Speymill Contracts v Baskind, GPS Marine v Ringway and, most recently, Gosvenor v Aygun, which all tell us that there is a difference between an issue that was or could have been decided in the adjudication, and an issue raised for the first time in enforcement proceedings.
There is also some interesting stuff in there about adjudicators’ fees and it is, I think, a good example of the TCC’s continuing supporting for adjudication. Continue reading
Following Sir Rupert Jackson’s judgment in Triple Point Technology Inc v PTT Public Co. Ltd, the short but hardly definitive answer to the question I’ve posed is, it all depends on the precise wording of the liquidated damages (LDs) clause. Continue reading
I read with interest Paul Bury’s blog, which touched on the case of Zagora Management Ltd v Zurich Insurance plc as it relates to claims against approved inspectors. I’m interested in the case for a different reason: it’s one of the first superior court decisions, post-Grenfell, that deals with the liability consequences of high-rise properties containing combustible cladding.
As is now etched in our collective memory, on 14 June 2017, a fire broke out in Grenfell Tower, in West London, resulting in the tragic loss of life. Since the time of this event, many owners of high-rise buildings across the UK have learned that their cladding contains combustible components, which may include aluminium composite panels with combustible cores (ACPs), phenolic insulation, or a wide range of other components – or is missing cavity barriers or other fire protection measures.
A challenging question that owners and contractors may ask their legal advisors is the extent to which the (potentially very substantial) cost of removing and replacing the combustible components, or rectifying these other issues, can be recovered. Since Grenfell, claims of this nature have been (and are being) made against a variety of participants including contractors, subcontractors, consultants, approved inspectors and insurers. Continue reading
