Monthly Archives: February 2022

REUTERS |
February 23, 2022

Amending cladding claims outside the limitation period. (E)PS, was it ever really compliant?

Post Grenfell, many building owners have discovered fire safety defects that need to be remedied. The question is: who should pay?

As has been widely reported, the answer to this is rarely straightforward. There are variety of reasons for this, one of the main ones being that many of the claims against those who carried out the works subsequently found to be defective are now time-barred.

The government is trying to address this issue by extending the limitation period for claims made under the Defective Premises Act 1972 (DPA) although as my colleagues discussed, claims under the DPA are far from straightforward. A simple extension of the DPA limitation period may not be the panacea to the defects crisis that some commentators suggest. Continue reading →

REUTERS | Ilya Naymushin
February 22, 2022

Do payment notices affect the date of accrual of a cause of action for limitation purposes?

The TCC is no stranger to resourceful arguments. Recently, a particularly ingenious submission proposed that, in construction claims, time begins to run for limitation purposes when a payment notice is, or should have been, issued. In Hirst and another v Dunbar and others, Eyre J confirmed that the usual position prevails and that the limitation period commences on completion of the work.

This was an absorbing and wide-ranging judgment, which is particularly pertinent to practitioners who deal with claims for construction work that are filed some time after the works were completed. Continue reading →

REUTERS | Athit Perawongmetha
February 16, 2022

TCC finds adjudicator did not undermine arbitration award

Compared to the restrictions we faced a couple of months ago with the emergence of the Omicron variant of COVID-19, it really does feel as if we are starting to return to some normality, and it was wonderful to see so many construction law professionals at the Society of Construction Law lunch in London last Friday. I had intended to read Morris J’s interesting judgment in John Graham Construction Ltd v Tecnicas Reunidas UK Ltd on the train home, but I sensibly put that off until the weekend, otherwise I fear my ramblings might have been somewhat difficult to discern.

John Graham v Tecnicas Reunidas is an interesting case because of the issues that have arisen from multiple adjudications and two arbitrations (one of which we’re told in the judgment is ongoing), and the impact of an adjudicator’s decision being overturned. Continue reading →

REUTERS |
February 9, 2022

Constructing the Gold Standard – public sector frameworks

December 2021 saw the publication of the independent review of public sector construction frameworks, commissioned by the Cabinet Office, and led by Professor David Mosey PhD. Mosey was given the brief of creating a new “Gold Standard” for public sector frameworks and framework controls. His report, Constructing the Gold Standard, follows his consultation with over 100 clients, suppliers and advisers highlighting practices which drive successful outcomes and others that impede progress. Continue reading →

REUTERS | Violeta Santos Moura
February 3, 2022

Ireland enforces another adjudicator’s decision

It might have taken a while before we started to see enforcement decisions in Ireland’s High Court arising from adjudications under the Construction Contracts Act 2013 but they now seem to be on a roll, with the latest (John Paul Construction Ltd v Tipperary Co-Operative Creamery Ltd) handed down just a few weeks ago.

This one was all about whether the adjudicator was guilty of some form of procedural unfairness, which the judge decided he wasn’t, and so enforced his decision.  Continue reading →

REUTERS | Heinz-Peter Bader
February 2, 2022

Novel consideration when balancing the imperatives of adjudication and litigation

The court may order a stay of a claim pursuant to CPR 3.1(2)(f) where the claimant has previously been ordered to pay the defendant sums in satisfaction of an adjudicator’s decision and the claimant has not done so. That power is exercised, in part, with the “pay now argue later” ethos of the Construction Act 1996 in mind. The key decisions to date (which I discuss below) balance a party’s rights of access to the court against those broader policy objectives.

This post looks at a case in which the TCC applied and expanded the case law in this area, RHP Merchants and Construction Ltd v Treforest Property Co Ltd. Continue reading →

REUTERS | REUTERS/ Ilya Naymushin
February 2, 2022

Construing a parent company guarantee: primary or secondary obligation… or both?

The issue of whether a parent company guarantee (PCG) creates a secondary liability (as opposed to a primary obligation) has been taxing the courts again.

Reminder: a true “guarantee” is only ever a secondary obligation, governed by the legal doctrine of surety. It is very different from a primary obligation that arises where an indemnity is provided by one party to hold another party harmless in respect of a loss it might suffer as a consequence of a particular event. Whether a primary and/or secondary obligation arises is always a question of drafting and fact. Many employers require a primary obligation as well as a secondary guarantee (for reasons set out below) and it is here that disputes often arise. Continue reading →

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