Monthly Archives: June 2021

REUTERS | Tobias Schwarz
June 29, 2021

Too much of a good thing: serial adjudication, multiple disputes and NEC

Adjudication has now become the default dispute resolution method for construction disputes, to the extent that some parties use it on multiple occasions and for multiple disputes. But that carries its own risks and complexities, as highlighted in the recent decision in Prater Ltd v John Sisk and Son (Holdings) Ltd.

This decision concerns the NEC3 Engineering and Construction Subcontract (ECS), and highlights the issues that come up with serial adjudication, as well as the need to take further steps beyond just issuing a notice of dissatisfaction under Option W2 and how the courts view the issue of whether more than one dispute can be referred to adjudication under that clause. Continue reading →

REUTERS | Lucy Nicholson
June 24, 2021

Interpretation of alleged inconsistencies between bespoke terms and standard forms

Last month, the Court of Appeal handed down its judgment in Septo Trading Inc v Tintrade Ltd.  While the case does not change the law, it provides a helpful outline as to the approach to be taken to interpreting alleged inconsistencies between bespoke terms and the terms of standard forms within a given contract. The case will be of general interest to practitioners, in particular those whose practice incorporates construction or shipping work, where standard forms are commonplace. Continue reading →

REUTERS | /Hyungwon Kang
June 22, 2021

Training adjudicators in Canada

It is almost four years to the day that I blogged about Ontario’s plans to introduce prompt payment and adjudication provisions to construction contracts.

I can’t believe how time flies and that, not only did Ontario enact its Construction Lien Amendment Act (which amended the Construction Lien Act and introduced new prompt payment rules and adjudication to resolve payment disputes “faster”), I’m now in the middle of teaching an adjudication training programme to budding Canadian adjudicators.

Interested? Then read on to find out more. Continue reading →

REUTERS |
June 15, 2021

Everybody needs good NABERS – accommodating the new rating scheme in construction contracts

There’s a new kid on the energy efficiency ratings block in the United Kingdom. NABERS UK Energy for Offices, a cousin of the established Australian system, officially launched in the UK in November 2020.

The NABERS UK system focuses on the energy efficiency of office buildings when they are in use, to gauge actual performance in a way that is comparable with similar buildings. The scheme seeks to close the existing gap between theoretical design-based energy performance and actual in-use energy performance. A separate scheme exists for newly built or renovated offices and existing office buildings.

The energy rating systems we are familiar with in the UK construction industry tend to focus on design-based ratings, setting a target performance rating in the contract at the outset, with varying degrees of obligations on contractors and consultants to achieve such targets by practical completion of the project.

NABERS UK, on the other hand, seeks to measure and rate the actual energy use of offices once occupied with the intention of accurately measuring the performance of operating buildings. The scheme encourages projects to commit to achieve a certain NABERS rating in post-construction performance, based on a scale of 1 (poor) to 6 (market leading) stars. Continue reading →

REUTERS | Leonhard Foeger
June 9, 2021

The limits of a reply

A claimant who receives a defence is not required to take any further step in relation to the statements of case. It can consider the pleadings closed and seek to move on to directions, disclosure, evidence and ultimately trial.

Nevertheless, sometimes the claimant will want to react to or deal with the allegations made in the defence. In particular, the claimant or its advisors may think that there is some additional or alternative way of putting the claim which is not defeated by the pleaded defence. In principle, the Pre-Action Protocol process should mean that by the time proceedings are issued, the claimant knows the key elements of the defence it will have to meet, but that will not always be the case in practice.

It is tempting, in that situation, to plead the additional or alternative way of putting the claim in a reply. Key advantages of a reply, of course, include that it may be filed and served as of right and does not require the consent of the other parties or the permission of the court, and that it does not carry the usual costs consequences of amendment. Continue reading →

REUTERS | Clodagh Kilcoyne
June 8, 2021

Experts – time to go back to the drawing board?

As someone that deals mainly with construction and engineering disputes, it is sometimes easy to forget that the “T” in TCC stands for Technology. In my defence, I would hazard a guess that at least three-quarters of judgments from the TCC are associated with the “C” (Construction), but the lack of technology cases means that they often stand-out.

It’s one such case that I want to talk about this week, Dana UK AXLE Ltd v Freudenberg FST GmbH, which concerned pinion seals manufactured by FST and supplied to Dana who then fitted them to rear axles installed on Jaguar Land Rover vehicles. However, that’s as far as the judgment of Joanna Smith J goes into the technical side of the case, as the judgment actually concerns an application by Dana to exclude the technical evidence of FST’s experts. Continue reading →

REUTERS | Robert Galbraith
June 2, 2021

Transport for Greater Manchester v Kier Construction: Notice the little things

Preparing and sending contractual notices always makes me nervous. There are so many things to get wrong: is it in time, where should I send it, who to, how should I send it? Not to mention the actual content of the notice.

For those of you like me, the recent case of Transport for Greater Manchester v Kier Construction Ltd shows that we are right to worry about these things. Notices are important, and getting them wrong has serious consequences. Continue reading →

Share this post on: