Monthly Archives: March 2020

REUTERS | Wolfgang Rattay
March 31, 2020

Adjudicating in the shadow of coronavirus

I know I’m not alone in thinking that the last few weeks have been a challenge, both personally and professionally. In a little over three months the whole world has been turned upside down and all because of the 2019 novel coronavirus disease (COVID-19).

Here in the UK, we are just starting week two of the coronavirus lockdown and most of us are still getting used to working from home every day. However, some folks don’t have that option and are still heading out to work each day, whether because they are key workers or because they can’t do their job anywhere else (like supermarket and construction workers), whereas others are stuck at home with nothing to do as they are part of the economy that is closed. Whatever our plans for 2020, they’ve all gone out of the window, at least for now.

I don’t know about you, but I never realised just how much working at home occasionally, the odd day here and there, differs from being here every day. Being away from co-workers is strange, not having the travel and routine of leaving the house is odd. It’s a tough time for everyone but, as the saying goes, the show must go on. In my case, that is working out how to keep adjudicating (and arbitrating) remotely. I haven’t been asked to mediate remotely yet, although that may only be a matter of time. Continue reading →

REUTERS | Maxim Shemetov
March 17, 2020

Court of Appeal upholds TCC on hybrid contract issue

I always enjoy reading Coulson LJ’s judgments as he explains things so clearly. Therefore, you’ll not be surprised to see that this week I’m looking at his judgment in C Spencer Ltd v MW High Tech Projects UK Ltd, where he upheld Farrell J’s October 2019 judgment. To be fair, I like her judgments too (although we’ve not had the benefit of so many of those yet), and I also wrote about that judgment at the time. Continue reading →

REUTERS | Carlos Jasso
March 10, 2020

Document production on construction projects: A reality called proof

“Documents create a paper reality we call proof.”

(Mason Cooley, American writer, 1925 – 2002)

Construction and engineering projects, and the disputes that sometimes arise from them, throw up a great deal of paperwork and data. While that is probably true of the majority of joint enterprises that continue over a substantial period, it is ensured in construction and engineering projects by contracts which typically require the creation of long paper-trails of minutes, progress reports, programme updates, cost data, notices, instructions, certificates and determinations throughout the project.

In modern times, we can also add to the above list the less formal means of communication that are now prevalent. Even where a formal project correspondence or collaboration system is used (and is supposed to be used exclusively), people may still send emails on the side (sometimes copying in colleagues, sometimes not; sometimes from their formal work email, sometimes from a personal address but using their employer’s device). We have recently seen increased use of messenger apps such as WhatsApp to transmit what would traditionally have been formal communications between individuals – even attaching documents or other images, sometimes saying things unofficially that could be used against the individual or their company. Continue reading →

REUTERS | Hannah McKay
March 4, 2020

Yuanda v Multiplex – “ascertaining” damages pre-adjudication under ABI bond

The TCC has just handed down judgment in Yuanda (UK) Company Ltd v Multiplex Construction Europe Ltd and another, which will be of interest to the construction industry as it deals with how ABI-type performance bonds operate.

Background

In July 2014, Yuanda entered into a sub-contract with Multiplex for façade works on a major project at Blackfriars Road. The sub-contract was based on a JCT Design and Build Sub-Contract, 2011 Edition. Yuanda also procured a “Guarantee Bond” in favour of Multiplex in the sum of £4,411,490.70 that had an expiry date of 4 April 2020 – referred to in the judgment as the “Guarantee”.

The main contract works were delayed, as were those under the sub-contract. Yuanda believed it was entitled to an extension of time, a view not endorsed by Multiplex. Multiplex settled certain claims under the main contract, part of which was a payment of £7.5 million of liquidated damages (LDs) to the employer. Multiplex sought to recover this sum from Yuanda. This claim was rejected by Yuanda, who in turn raised a claim of circa £7 million as part of its final account.

Multiplex commenced an adjudication against Yuanda on 2 December 2019, although the parties agreed that the adjudicator would have until 6 March 2020 to make his decision. On 17 January 2020, Multiplex made a call on the Guarantee. Continue reading →

REUTERS | David Mdzinarishvili
March 4, 2020

Government response to Construction Act and retentions consultations

It is almost 30 months since Jonathan wrote about BEIS’s consultation on the 2011 amendments to the Construction Act 1996. As I’m sure everyone knows, the amendments were introduced by Part 8 of the LDEDC Act 2009. A couple of months later, Jonathan followed up on his initial piece and also wrote about BEIS’s consultation on cash retentions, which was running in parallel.

Fast forward to February 2020 and the government has finally published a summary of the responses to the Construction Act 1996 consultation and the cash retentions consultation. As adjudication doesn’t really feature in the context of cash retentions, I thought I’d focus on the comments in relation to adjudication in the Construction Act 1996 consultation. Continue reading →

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