What, I hear you ask, am I doing writing about football? Well, despite the title of this blog, it’s actually about an arbitration and subsequent court proceedings that just happen to involve a football club. I think it’s interesting for a number of reasons, not least because it applies the Supreme Court’s findings in Halliburton Company v Chubb Bermuda Insurance Ltd, which I blogged about last year. Continue reading
As has been well-known in the industry for some time and is also now being picked up by the mainstream media, UK construction is currently under considerable pressure due to global shortages of key materials. The combination of a worldwide surge in demand for essential materials, as existing projects are revived and new projects are greenlit following the uncertainty of the pandemic, compounded with many other factors such as Brexit, congested transport routes, rises in shipping costs, labour shortages (particularly in the haulage sector) and even climate change have meant that UK builders are especially exposed. Key materials, including bagged cement, Scandinavian timber, steel and aluminium have all been affected and there does not appear to be any chance of relief, at least in the short-term.
Consequently, it is important that employers and contractors agree how to mitigate the risk to their projects of increased costs and delays as developments compete for a finite number of resources. Traditionally, employers would usually expect to pass the risk of obtaining materials onto the contractor and, more often than not in our experience, contractors would generally be willing to accept this position. However, we are increasingly seeing contractors becoming more reluctant to contract on this basis due to the uncertainties in the market. Continue reading
Since the COVID-19 pandemic began, a key question for practitioners has been whether COVID-19 constitutes a force majeure event and so entitles parties to relief under contracts that include force majeure provisions. Much has been written on how little case law there is on this topic and how English law does not recognise force majeure as a standalone concept.
What is not asked so often, but most certainly should be, is what factors the party deciding whether an event constitutes force majeure should have regard to when making that decision. As the recent case of Dwyer (UK Franchising) Ltd v Fredbar Ltd illustrates, here there is no lack of case law. When exercising discretion under a contract, English law has clear principles in place. Failure to exercise these can lead to repudiatory breach.
This blog takes a closer look at this case focusing on the force majeure elements. Continue reading
It is no coincidence that construction cases play a prominent role in many of the leading decisions concerning limitation. It is the nature of our work that problems have a tendency to emerge some time after the work was completed and, more than occasionally, new problems come to light after proceedings have commenced.
As construction litigators, we are therefore all no doubt familiar with having to draft an amendment to a claim that is, or might be, vulnerable to a limitation challenge. While we probably trust that we are familiar with the law on the point, many of us would likely turn to our reliable friend, the White Book, to remind ourselves of how the court might approach such an application. A couple of TCC decisions over this year suggest that this course of action might not reveal the full picture. Continue reading
Doesn’t time fly. I can’t believe it is almost eight years since Practical Law published my blog on Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd. As readers may recall, in that case Akenhead J decided that a collateral warranty (CW) given by Laing in favour of Parkwood was a construction contract for the purposes of the Construction Act 1996, and that accordingly Parkwood could pursue a defects claim under it by way of adjudication. I suggested that the decision was “simply wrong” and could have “highly undesirable ramifications” for the negotiation of CWs going forward. (After an initial flurry, it seems that I may have been wrong on the second count, but let’s draw a veil over that for now.)
Fast forward to August 2021 and the recent case of Toppan Holdings Ltd and Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP. This has prompted my good friend Jonathan Cope (in his blog) to call for all CWs to include an express right to adjudicate. He suggests that this is “long overdue” and doubts whether such a provision should be controversial. But is he right? Has anything changed since 2013, and does Toppan affect the position? Continue reading
