Monthly Archives: October 2019

REUTERS | David Gray
October 30, 2019

Judicial treatment of delay analysis: raw data preferred

Have you read the SCL’s delay and disruption protocol? I am sure you have, as the SCL website notes that it has been downloaded 38,500 times. But if not, I would recommend it to you, in particular its helpful glossary of terms, its reminder of the various formulae for calculating lost overheads and profit, and its description of various methods of delay analysis.

Unlike the first edition of the protocol, which recommended time impact analysis, the second edition (published in February 2017) does not recommend one particular method, but sets out the following six methods together with their features, and pros and cons:

  • Impacted as-planned analysis.
  • Time impact analysis.
  • Time slice windows analysis.
  • As-planned v as-built windows analysis.
  • Longest path analysis.
  • Collapsed as-built analysis.

What the protocol lacks, of course, is any standing either in terms of incorporation into contracts or judicial recognition. The SCL website carries a list of judicial references not just from the courts of England and Wales but also from Australia, Hong Kong and Norway. However this list is disappointingly short (just 12 cases) and a reading of the cases shows an underwhelming lack of support from judges. Continue reading →

REUTERS | REUTERS/Goran Tomasevic
October 23, 2019

Adjudicating on multiple adjudications

I recently saw a comment that someone had posted on LinkedIn asking if it was possible for the law just to stay as it is for a while, given the deluge of recent construction case law. I’m sure quite a few of us think that from time to time although, as someone with a regular blog post to write, I don’t want it to go too quiet too often!

Which brings me to one of the latest judgments from Adam Constable QC. It looks like he had a busy September, hearing the dispute in LJH Paving v Meeres Civil Engineering one day, Meadowside Building Developments v 12-18 Hill Street the next day. Plenty has been written about the important points of principle that came out of Meadowside by those involved (for example, see Helena White and Mark Fletcher’s posts), so I’m going to focus on the judgment in LJH Paving. In particular, I’m going to look at the multiple adjudications point (which the keen-eyed might notice wasn’t actually a point raised in the judgment). Continue reading →

REUTERS | Vijay Mathur
October 22, 2019

Third party funding in adjudication for exceptional circumstances

In Meadowside Building Developments Ltd (in liquidation) v 12-18 Hill Street Management Company Ltd, Adam Constable QC decided that where a company in liquidation sought to enforce an adjudication decision, the provision of adequate third-party security was a necessary, but not sufficient, requirement.

In her recent Blog post, Helena White provided a general summary of that decision. In this piece I focus on how Meadowside shows the continued relevance of the rules of maintenance and champerty where third parties are involved in litigation (including adjudication). Continue reading →

REUTERS | Mike Segar
October 21, 2019

Considering crystallisation: what dispute should (or can) you refer to adjudication?

It’s a scenario we see all too often. Employer meets contractor. Employer and contractor enter into a contract and, for a while, everything seems rosy. Then, as the project progresses, unresolved claims start escalating and the relationship deteriorates. Inevitably, the parties’ minds turn to adjudication, and the potential recourse that they may find there. Continue reading →

REUTERS | Kai Pfaffenbach
October 16, 2019

Meadowside: one small step for companies in liquidation but a giant leap forward for adjudication enforcement

Meadowside Building Developments Ltd (in liquidation) v 12-18 Hill Street Management Company Ltd provides another development in the law of adjudication (and adjudication enforcement) that places liquidators (acting on behalf of a company in liquidation) closer to being able to enforce adjudicators’ decisions. Continue reading →

REUTERS | Kevin Lamarque
October 16, 2019

Flexidig v Coupland – claims in economic torts

The recent TCC decision in Flexidig Ltd v A Coupland (Surfacing) Ltd piqued my interest. My first thought was why did Flexidig commence proceedings against Coupland, and why did it bring the claim that it did?

It provides a rare example of the tort of procuring a breach of contract arising in the construction context and contains helpful comments on the contractor’s right to have “first refusal” on remedying defects. Continue reading →

REUTERS |
October 15, 2019

Email signatures: say what you mean and mean what you say

In Neocleous v Rees a court found that an automatically generated email footer (containing the name and contact details of the sender) constituted a signature for the purposes of the legal requirement that a contract for the sale or disposal of an interest in land must be signed by or on behalf of each party. The judge said that the footer was included in the email as the result of a conscious decision to include it and the recipient had no reason to think that the presence of the name as a signature was unknown to the sender. The fact that the sender had used the words “Many Thanks” before the footer showed an intention to connect his name in the footer with the contents of the email. Continue reading →

REUTERS |
October 9, 2019

Bleak Choses? Trusting in equity

For many common lawyers – certainly me – trusts and equity seem exotic things. At one point, I supposed the closest I would get to equity in action was by reading Bleak House, which in length and majesty even rivals some of the equity textbooks. But in this (as many other things) I was proved wrong. One cannot properly understand the law of assignment – a bedrock of the commercial construction lawyer’s practice – without comprehending equitable assignment. And it is at the outer fringes of assignment where one may bump – or even lapse – into trusts.

A few recent experiences of mine – plus some Ask Practical Law items – indicate these encounters are not so rare. So with apologies to Snell, Hanbury and the wards in Jarndyce v Jarndyce, I offer some thoughts. Continue reading →

REUTERS | Carlos Jasso
October 8, 2019

Does the supply of concrete include “installation” as well as “delivery” for the purposes of the Construction Act 1996?

I’ve lost count of the amount of times that Matt and I have blogged about cases involving the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996. In almost all of those blogs that I’ve written, I’ve questioned the need for the exclusions and advocated their abolition: for example, see Let’s put section 105(2) of the Construction Act 1996 into Room 101!.

Many of the cases in question have concerned the exclusions at section 105(2)(c), namely the erection of steelwork to support or provide access to machinery on a site where the primary activity is power generation.  For example, just last week the TCC considered such an issue in C Spencer Ltd v MW High Tech Projects UK Ltd. However, I want to talk about a TCC case that concerned the supply only exclusion at section 105(2)(d), Universal Sealants (UK) Ltd (t/a USL Bridgecare) v Sanders Plant and Waste Management Ltd. Continue reading →

REUTERS | Ilya Naymushin
October 2, 2019

British Overseas Bank v Stewart Milne – spotlight on collateral warranties

For contracts that typically amount to a few pages, collateral warranties undoubtedly generate more than their fair share of case law. Normally, those cases are run of the mill but every now and then one comes along that gives pause for thought.

Such was the case for me with the judgment of the Outer House of the Scottish Court of Session in British Overseas Bank Nominees Ltd v Stewart Milne Group Ltd. This case concerned whether a purchaser was out of time to bring a claim against the contractor under a collateral warranty. Continue reading →

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