Monthly Archives: October 2022

REUTERS | Toby Melville
October 26, 2022

How final is a final certificate?

At the end of last year, Jonathan discussed the Court of Session’s judgment in D McLaughlin & Sons Ltd v East Ayrshire Council, where Lord Clark looked at the conclusiveness of a final certificate under a Scottish Standard Building Contract with Quantities, 2011 Edition (SSBC, 2011 Edition).

That case has popped up in the law reports again, this time in the Inner House (also called D McLaughlin & Sons Ltd v East Ayrshire Council), where three lords (Carloway, Woolman and Malcolm) have considered the Council’s appeal against Lord Clark’s judgment. In a rare occurrence these days, that judgment split the house. Continue reading →

REUTERS | Thomson Reuters Global Creative Services
October 19, 2022

Good faith: reliance on the repugnant

English law has, to put it mildly, a fractious relationship with the concept of good faith. There is a deep-rooted scepticism towards it that has often manifested as outright hostility: Lord Ackner famously described the duty to negotiate in good faith as “inherently repugnant to the adversarial position of the parties” (Walford v Miles). Indeed, the Supreme Court has recently confirmed that there is no general principle of good faith in English law (Times Travel (UK) Ltd and another v Pakistan International Airlines Corp).

It has been said that good faith is “a topic that has been written about at inordinate length, by an almost intolerably wide group of people – some worth reading, some not.” Despite this foreboding context, it is a prescient time to consider good faith further. Following Yam Seng Pte Ltd v International Trade Corporation Ltd there has been a rapid development of the law on implied obligations of good faith in commercial contracts. After some initial confusion as to the test to be applied when seeking to imply a term of good faith, the Court of Appeal in Candey Ltd v Bosheh and another has now provided some welcome clarity.  Continue reading →

REUTERS | Violeta Santos Moura
October 17, 2022

The updated Construction Playbook: what’s new?

Less than two years ago, the government published the Construction Playbook, a comprehensive and quite visionary plan for changing the delivery of construction projects in order to “get it right from the start”. If you haven’t looked at it so far, it is worth reading. It sets out what are transformational principles and policies, designed to change how public works projects are procured and managed.

That is a tall order and the Playbook covers a range of areas, from preparation and planning to selection and project delivery. It looks at topics such as commercial pipelines, digital technology, benchmarking and cost models, risk allocation and successful relationships, as well as a whole chapter dedicated to effective contracting. The updated Playbook was published last month, together with a raft of new guidance notes, so now is a good time to remind ourselves what it is all about and what progress has been made since it was first published. Continue reading →

REUTERS | Bogdan Cristel
October 12, 2022

Thoughts on the consultation amending the Arbitration Act 1996

I’ve been looking at the Law Commission’s consultation on proposed changes to the Arbitration Act 1996 (AA 1996). The AA 1996 has been around some 25 years, which is about the same length of time that I’ve been resolving disputes. In fact, the very first case I worked on was a pre-Act arbitration that had started some years before, and rumbled on for several more. Therefore, I don’t really remember life without the AA 1996, just like it is really hard these days to remember life without the Construction Act 1996!

Continue reading →

REUTERS | Kham
October 5, 2022

Be certain, be specific and be clear: milestone judgment for liquidated damages

Recent case law has shown how careful parties need to be when drafting a liquidated damages (LDs) regime. The case of Buckingham Group Contracting Ltd v Peel L&P Investments and Property Ltd provides yet another example of what can happen if there is any ambiguity in the drafting.

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

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