Monthly Archives: November 2020

REUTERS | Arnd Wiegmann
November 24, 2020

Getting to grips with online mediation

It is eight months since I first blogged about the impact that COVID-19 was having on dispute resolution in England in a piece aptly called, Adjudicating in the shadow of coronavirus. (I don’t know why, but that title always makes me think of Gabriel Garcia Marquez’s book, Love in the time of cholera. I’ve no idea why, other than the lyrical way the title sounds. Certainly, the stories are worlds apart… but I digress…)

That blog was written at the start of the first national lockdown and I followed it a few weeks later with a piece about the lessons I’d learnt in those first few weeks. By the time Jonathan came to write his October post, A few lessons I have learned from resolving disputes during the pandemic, I’d say we had become “old hands” at this on-line stuff.

But has it been plain sailing and how is mediation faring in this on-line world? Continue reading →

REUTERS | Navesh Chitrakar
November 20, 2020

When is an offer to settle a Part 36 offer?

A Part 36 offer is an important tactical weapon that can be used by either party to encourage the other side to settle a dispute. That is because a Part 36 offeror may be entitled to substantial costs benefits if successful at trial. However, in order to benefit an offeror must comply with the rules set out in CPR Part 36.

This post looks at Pepperall J’s judgment in Essex County Council v UBB Waste (Essex) Ltd, where he held that if a Part 36 offer could be construed in one of two ways (one giving it effect and the other not), the construction giving it effect should prevail. Obiter, he also commented that minor defects in a purported Part 36 offer cannot be overlooked, and that principles of estoppel do not apply to the Part 36 regime. Continue reading →

REUTERS | Yuri Maltsev
November 17, 2020

Payment down the chain

Cash-flow management remains one of the main problem areas in construction and engineering projects. Issues in getting paid, serious enough on their own, are often an early warning sign for a project heading into wider difficulties.

There can of course be a number of culprits for cash-flow difficulties. A few weeks’ ago, my colleague, Yousef Shakah, took a closer look at one routine offender: mishandled retentions. Today, I’m going to take a look at conditional payment clauses and consider the guises they can take, how different jurisdictions have chosen to deal with them, what problems they can cause and finally, in jurisdictions where they are permitted, approaches which have evolved to mitigate their misuse. Continue reading →

REUTERS | Regis Duvignau
November 10, 2020

Coulson LJ’s seven golden rules for adjudicators revisited

The past couple of months have been somewhat lean for TCC judgments on adjudication and arbitration matters, so when our (brilliant!) editor at Thomson Reuters asked me what I wanted to write about this week the answer was not immediately obvious to me. There’s certainly been a lot on the news over the past week and, for once in 2020, there has been some good news. However, you’ve all got plenty of apps and networks giving you your news fix, so I won’t dwell on that. I had pondered discussing my top five movies of the 1980’s, but suspect I won’t get asked to write another construction blog if I do that.

I therefore glanced through the last 12 years of blogs that Matt and I have written, and noticed one of Matt’s from May 2010 when he covered what Coulson J (as he was then) had said at a Society of Construction Law meeting earlier that month about the seven golden rules for adjudicators. The question struck me as to whether those rules have stood the test of time (they have), and they seem particularly relevant at the moment as a number of nominating bodies have been recruiting new adjudicators to their panels over the past couple of years, including RICS. Continue reading →

REUTERS | Darrin Zammit Lupi
November 3, 2020

Novation, step-in and a potential problem with CIGA 2020

Where the contractor has become insolvent, what obligations can an employer enforce when stepping-in to a previously novated professional consultant’s appointment in a design and build scenario?

A question that routinely arises in practice, this scenario is perhaps more relevant now than ever, not only because of COVID-19 but also because of the Corporate Insolvency and Governance Act 2020 (CIGA) that our colleague, Primrose Tay, blogged about.

This blog will take a closer look at this question. First, novation – what it is, what it does and what the novating party (here, the employer) needs to do when novating a contract to protect its position. Then step-in – how it works, what rights and obligations does the stepping-in party (here again, the employer) have and is it even possible now in the event of contractor insolvency? Continue reading →

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