Monthly Archives: December 2021

REUTERS | Arnd Wiegmann
December 22, 2021

The words are mine, and mine alone (or so my lawyer told me)

Ah, witness statements. How often in trial have we rolled our eyes as a witness explains that, while the sentiment of a particular paragraph was about right, they wouldn’t have quite put it like that but “the lawyers wrote it” and it was good enough. Even worse are those occasions when a witness has clearly not recently read any of the documents referred to in their statement and is, instead, intent on telling a different story.

The drafters of the Civil Procedure Rules sought to do away with those little nuggets by Practice Direction (PD) 57AC. This introduced new provisions concerning witness statements for trials in the Business and Property Courts (B&PCs) and has applied to all witness statements signed since 6 April 2021.

The provisions of PD 57AC have recently been considered in two TCC decisions, Mansion Place Ltd v Fox Industrial Services Ltd and Blue Manchester Ltd v Bug-Alu Technic Gmbh and another, and that is what I am going to look at today. Continue reading →

REUTERS | Arnd Wiegmann
December 17, 2021

England and Scotland at one when it comes to the conclusivity of final certificates

I’m acutely aware that this blog is being published when many of you will have already broken-up for the Christmas holidays, and quite possibly the last thing you want to be doing is reading work-related content when you could be sipping Bailey’s and watching your favourite Christmas movie (I’ll throw Die Hard, Home Alone and Love Actually into the mix, but not necessarily in that order). I will therefore endeavour to keep this short.

If you cast you mind back to October you might recall that I wrote about CC Construction Ltd v Mincione, which concerned (among other things), the conclusiveness of a Final Statement under a JCT Design and Build Contract, 2011 Edition. Just like buses, a similar case has come along, namely D McLaughlin & Sons Ltd v East Ayrshire Council, which considers the conclusiveness of a Final Certificate under a JCT Standard Building Contract with Quantities, 2011 Edition (it’s the Scottish version but the key clauses are the same).

My thanks to Len Bunton for bringing this judgment to my attention. Continue reading →

REUTERS |
December 15, 2021

A refresher on copyright – Lennox Estates v S&W Ventures

Imagine… you own a site. You give an option to a developer to buy that site subject to obtaining planning permission. It gets the planning permission, using planning drawings prepared by a firm of architects that it engages, but the option to buy the site lapses. You sell the site (which now comes with planning permission) to another developer. So far so straightforward, but then the new developer instructs its architects to prepare further plans and construction drawings that rely heavily on the drawings devised for the purposes of the planning application. The original developer (who owns the copyright in the plans) objects.

Surely, they don’t have a case? After all, you own the land and it has the benefit of planning permission based on drawings prepared specifically for the site, so you must own the copyright in any drawings to do with the land.

Oh no you don’t, said the court in the recent case of Lennox Estates Ltd v S&W Ventures Ltd, which provides a reminder of the care that should be taken when purchasing land with planning permission and when re-using plans and drawings obtained by a previous owner or developer when seeking planning permission.

This blog takes a closer look at this case. Continue reading →

REUTERS | Daniel Munoz
December 7, 2021

Be careful what you write, it may not remain confidential

Many years ago I wrote a blog on how an adjudicator should avoid using idiosyncratic language in their decision. I had in mind a particular judgment (Vision Homes Ltd v Lancsville Construction Ltd), where one party was arguing the decision was void and of no effect because it was vague and ambiguous. It was the judge (Christopher Clarke J) who described the adjudicator’s language as “idiosyncratic”, but also said that it would not have prevented him from upholding the adjudicator’s decision, but for a technical issue to do with his appointment (he was incorrectly appointed and lacked jurisdiction in any event). The adjudicator’s choice of language was also before the TCC later that year, this time in ROK Building Ltd v Celtic Composting Systems Ltd. There the issue centred on whether the adjudicator had directed a payment or simply declared one was due.

However, after that, I don’t recall the matter really troubling the courts. Fast forward 12 years, and once again an adjudicator’s decision-writing is in the spotlight. When you see what follows, you’ll see why I could not resist blogging about it. After all, how often do you see references to baseball, Squiddly Diddly and SpongeBob Square Pants in the same decision? I’m pretty sure I have never referred to any of those in one of my decisions!

We are heading down under to the Supreme Court of the Australian Capital Territory (ACT) and I must thank Julian Bailey for the heads up on this one 😉

Continue reading →

REUTERS | Regis Duvignau
December 1, 2021

FIDIC Climate Change Charter: what does it all mean?

An estimated 70% of global carbon emissions come from the building and operation of infrastructure with a staggering seven percent of global carbon emissions coming from concrete alone. If we are to come anywhere close to achieving net zero by 2050, the construction and engineering community must play a crucial and immediate role.

FIDIC, the International Federation of Consulting Engineers, representing over 40,000 companies and more than one million professional engineers, is taking a welcome lead in galvanising the industry to take action to reduce carbon emissions and tackle the climate crisis.

On 11 November 2021, FIDIC published its first Climate Change Charter: a call to action for the construction and engineering community to take immediate steps to meet the United Nation’s Sustainable Development Goals and to support the transition to net zero. Continue reading →

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