Monthly Archives: March 2022

REUTERS | Toru Hanai
March 30, 2022

Conflict avoidance in 2022

It’s a few years since Jonathan wrote about the conflicts avoidance panel (CAP) that TfL and RICS developed for dealing with disputes on London Underground station redevelopments, including redevelopments as a consequence of Crossrail, to effectively ensure that disputes could be “nipped in the bud” at an early stage. It’s hard to know how successful the CAP has been in achieving its aims but, one thing is sure, it hasn’t helped the Elizabeth line (as Crossrail is now known) open on time, and it hasn’t addressed two of Jonathan’s bug bears – getting people to move down the carriage when it’s busy or standing out of the way when they are in the doorway to let others off and on (although COVID might have helped with both of those!).

Similarly, Network Rail’s Dispute Avoidance Panel (DAP) is being used to avoid disputes on the programme of works on the rail network, and is something that Paul Cacchioli has discussed a number of times. He referred to the DAP acting like a “seasoned team of expert fire fighters” being able to spot “smouldering embers of a dispute in the dry grass and inviting others to take action to ensure a fire doesn’t start”.

However, it is probably fair to say that both have raised awareness of the need to resolve disputes before they become disputes (back to Jonathan’s buds or Paul’s embers) and have led to a number of initiatives, including the Conflict Avoidance Pledge that was officially launched in early 2018, and which seems to be gaining momentum.  Continue reading →

REUTERS | Ali Hashisho
March 23, 2022

Managing PFI contract expiry risks – updated IPA guidance

On 28 February 2022, the Infrastructure and Projects Authority (IPA) published its latest guidance to contracting authorities (CAs) on preparing for PFI contract expiry. It provides practical guidance on managing expiry and service transition. We have previously written about the IPA’s earlier guidance and its PFI expiry health check report.

The guidance is also relevant to private sector entities including investors, funders, asset managers and market suppliers. This is particularly so where both parties want to avoid disputes and work amicably and cooperatively towards a smooth exit, handover and transition process.

This blog takes a closer a look at the guidance and considers what the key takeaways are. Continue reading →

REUTERS | Heinz-Peter Bader
March 18, 2022

TCC’s useful reminder of limits of natural justice challenges to adjudicators’ decisions

I acknowledge that the Ukraine crisis is at the forefront of our minds at the moment and I confess it feels somewhat strange to be writing a blog about a construction dispute, which pales into insignificance in comparison. However, I appreciate that you will have clicked on this blog to read about a TCC adjudication enforcement case, and so I will do my best to do it justice.

The case in question is Bilton and Johnson (Building) Co Ltd v Three Rivers Property Investments Ltd, which was heard by Mr Jason Coppell QC (sitting as a deputy High Court judge). I admit that the case doesn’t tell us anything new about the law of adjudication, but it is a useful reminder of the limits of natural justice challenges to adjudicators’ decisions, as well as the fact that whether an adjudicator’s findings are correct as a matter of law is not material to whether their decision should be enforced. Continue reading →

REUTERS | Toby Melville
March 9, 2022

Lumley v Foster – the danger of oral contracts and contracting with the correct entity

Despite the volumes of case law illustrating the dangers of not having a written contract when carrying out a construction project, it is still common practice, particularly for smaller domestic projects and in this current market where builders are in high demand, for parties not to have a formal contract.

Nine times out of ten all will be absolutely fine: works will progress, any small issues will be amicably overcome between the parties, the project will complete and everyone will be satisfied with the result.

But construction projects can be uncertain beasts. Every now and then, things won’t run so smoothly. There may be defects, delays, cost pressures, design changes, or any variety of unforeseen issues. This is when not having a written contract to fall back on can become a real problem. Continue reading →

REUTERS |
March 7, 2022

The Construction Briefing ep.8: building safety, party walls and access to a neighbour’s land

Episode 8 of The Construction Briefing is now available.

This episode covers the latest building safety developments, looking at the Building Safety Bill and the government’s wide-ranging amendments to limit leaseholder liability, allow the government to block developers and construction product manufacturers from operating in the market, imposing financial liability on construction product manufacturers and widening the scope of the building safety levy.

Michelle and Yassir also look at the judgments in Power and another v Shah [2022] EWHC 209 (QB), which considers party wall issues, and Prime London Holdings 11 Ltd v Thurloe Lodge Ltd [2022] EWHC 303 (Ch), where the High Court made an access order under the Access to Neighbouring Land Act 1992 (ANLA 1992).

REUTERS | Ajay Verma
March 2, 2022

Lack of jurisdiction entitled adjudicator to resign

Last year I wrote about the judgment in Davies & Davies Associates Ltd v Steve Ward Services (UK) Ltd, where Roger ter Haar QC (sitting as a deputy High Court judge) granted summary judgment on a claim for payment of an adjudicator’s fees and expenses arising from an adjudication in which the adjudicator resigned prior to issuing a decision.

The matter has now come before the Court of Appeal in Steve Ward Services (UK) Ltd v Davies & Davies Associates Ltd, with Coulson LJ giving the leading judgment. The court upheld the first instance decision and also allowed the adjudicator’s cross-appeal, finding that the judge was wrong to suggest the adjudicator’s decision to resign was erroneous or that he went outside the ambit of paragraph 13 of the Scheme for Construction Contracts 1998.

I think Coulson LJ’s judgment makes some interesting points. Continue reading →

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