Monthly Archives: November 2019

REUTERS | Mark Blinch
November 27, 2019

The Ontario Construction Act: building on the UK prompt payment and adjudication regime

This summer I had the pleasure of traveling to Toronto and meeting Canadian construction lawyers to discuss the introduction of a prompt payment and adjudication regime in Ontario on 1 October 2019.

As Matt Malloy outlined in his blog from 2017, the provisions of the Ontario Construction Act take inspiration from the UK. However, while for the most part, prompt payment and adjudication in Ontario will be familiar to UK practitioners, there are a few subtle, but interesting, differences that take account of, and arguably improve on, the UK system. Continue reading →

REUTERS | Alexandre Meneghini
November 26, 2019

Contract administration and notice provisions: mere procedure or condition precedent

Recent decisions considering time bars and notification provisions have generated considerable commentary and discussion over the last few months. One of these is Boskalis Offshore Marine Contractive BV v Atlantic Marine and Aviation LLP (the “Atlantic Tonjer”) which concerned notification provisions in a payment clause and the timely challenge of disputed invoices before they were due for payment. Continue reading →

REUTERS | Denis Balibouse
November 19, 2019

“All for one and one for all” when it comes to severing an adjudicator’s decision

A few weeks ago, I looked at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, where I focused on the mentoring – pupil adjudicator points, and left the crystallisation of the dispute points to others.

This week, I’m looking again at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, only this time it is his second opinion that I am interested in, which focused on severing the adjudicator’s decision.

And if you are wondering why I’m quoting from Alexander Dumas’ Three Musketeers, then read on… Continue reading →

REUTERS | Antonio Parrinello
November 18, 2019

Res judicata and common interest privilege in multi-party litigation

The complexity of modern construction projects often means that a raft of specialist sub-contractors, managers, administrators and certifiers are engaged, each bringing their own expertise to bear on the works.

However, when things go awry, the result can be a similarly complex and fragmentary multi-party dispute. Several such disputes have found their way to the TCC in recent years – for example, the litigation between Amey LG Ltd, Amey Birmingham Highways Ltd and Birmingham City Council, which Fraser J characterised (at paragraph 3) as “tortuous”.

In circumstances where the same defendant is being sued by a number of different claimants in respect of the same or related matters, but in separate sets of proceedings, the following two questions commonly arise:

  • To what extent is that defendant bound by determinations, both factual and legal, made in other proceedings against different claimants?
  • Will communications with the defendant(s) in those other proceedings be privileged?

Continue reading →

REUTERS | Paulo Whitaker
November 13, 2019

New Balance fails to equalise in sponsorship dispute

In a step change from the days of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) in which the Court of Appeal rejected the notion of a general doctrine of good faith, many construction contracts now include an express requirement to act in “good faith”.

This trend is not confined to long term PPP agreements and alliancing arrangements. It is also seen in standard form contracts, such as the “mutual trust and co-operation” wording found in the NEC ECC contracts and (where selected) the supplemental collaborative wording found in the JCT:

“…the parties shall work with each other and with other project team members in a collaborative and co-operative manner, in good faith and in a spirit of trust and respect…”.

Commercial practitioners will also be aware of the recent judicial focus on relational contracts, into which contracts a duty of good faith may be implied. Last year the Court of Appeal noted that a PFI contract may be classified as a relational contract in Amey Birmingham Highways Ltd v Birmingham City Council. Continue reading →

REUTERS | Hannah McKay
November 13, 2019

Sharing the pain: considerations for joint venture participants

Both contractors and developers often enter into joint ventures to carry out a specific project. It enables parties to bid on larger projects, pool their resources, including specialised knowledge, and spread risk across the participants. The recent decision in Doosan Enpure Ltd v Interserve Construction Ltd serves as a reminder to participants in construction joint ventures of the potential pitfalls of intra-JV disputes. Continue reading →

REUTERS | Reuters
November 5, 2019

TCC considers the section 105(2) exclusions (again)

In my last post, when I considered the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996, I was looking at the supply-only exception and its proviso in section 105(2)(d). I concluded  that post by saying:

“I think that this case further reinforces the need to abolish the exclusions in section 105(2).”

When Matt posted the blog on LinkedIn, my views about the abolition of the supply-only exclusion prompted some lively debate, with some people in agreement and others pointing out some potential practical difficulties of abolishing it. However, my sense is that there is more consensus about abolishing the power generation exclusion in section 105(2)(c), following cases such as Severfield (UK) Ltd v Duro Felguera UK Ltd, where Coulson J (as he was then) was highly critical of it.

In this week’s post I want to discuss another section 105(2)(c) exclusion case, C Spencer v MW High Tech. Continue reading →

Share this post on: