Francis Bacon, Advancement of Learning:
“The knowledge of man is as the waters, some descending from above, and some springing from beneath, the one informed by the light of nature, the other inspired by divine revelation.”
Practical Law Construction celebrated its eighth birthday this month. A lot of water has gone under the bridge since we launched in 2008, not least the Construction Act 1996 amendments, which turned five this month. We are also on our third set of JCT amendments. First it was the 2009 revisions, then a whole new suite in 2011 and now it’s the 2016 Editions. That’s three sets of changes that practitioners have had to get to grips with in eight years. (It’s nearly as many managers as England’s football team has had in that time!)
Last month saw the Design and Build 2016 suite arrive, and we published a note on the key changes and our schedule of amendments. This month it was the turn of the Standard Building Contract 2016 suite and our note on the key changes and schedule of amendments will follow shortly.
The start of the Michaelmas term saw plenty of case law for construction lawyers to get to grips with. In adjudication, the TCC held that:
- A party can refer to a second adjudicator the question of the value of its final account.
- An adjudicator’s decision was wrong in law and was not binding on either party, which Matt Molloy looked at.
- An application to consolidate adjudication enforcement proceedings with a main action (dealing with the underlying dispute) was no way to avoid enforcement.
- The adjudicator’s mistake was within jurisdiction therefore his decision was enforced in full, which Michael Curtis QC and Charles Pimlott considered.
Elsewhere, the Court of Appeal held that:
- A contractor had no contractual right to apply for interim payments after a payment schedule expired, even though works were ongoing. Tom Coulson highlighted some of the key issues and Matt Molloy looked at the potential consequences.
- An obligation to make prompt payment was not a condition of a charterparty.
- A party was limited to recovering court fees only, because it failed to file a costs budget.
And the High Court held that:
- The parties’ contract was governed by a JCT ICD 2011 and not a letter of intent.
- A supplier was liable to a contractor for the cost of additional testing and repairs caused by weld defects.
- A project monitor was negligent, and assessed the quantum of losses arising from that breach of duty.
- Third party funder fees were recoverable as costs of an ICC arbitration.
- The claimants had paid the correct court fee when they issued their damages claim.
In other news, we’ve been told to expect a new construction and engineering pre-action protocol and when to email the Rolls Building, seen the Farmer report on construction labour, been told about Paul Morrell’s training review, heard that the government supports expansion at Heathrow, heard about new plans for the English NIC, including an infrastructure assessment and a consultation on a Welsh NIC, and a payment complaints scheme for small businesses, and we’ve seen the Commissioner’s first anti-slavery report, more procurement policy notes and the project documents for Hinckley Point C. Michael Levenstein also told you about the government’s decision to proceed with the project.
On the comment front, Jonathan Cope discussed why adjudicators are not “expected to be perfect” and explained why adjudication is not “the Wild West of dispute resolution”, James Clarke explained professional negligence, the Bolam test and O’Hare v Coutts, Sarah Williams considered compensation principles, Sheona Campbell looked at construction law in Hong Kong, Mark Raymont and Christopher Young referred to Dubai’s new judicial tribunal and James Audsley continued his series on party walls. We also published John Denis-Smith’s views on preliminary issue applications in the TCC, which is the first in a new regular series from 39 Essex Chambers.
And finally, Brexit news this month included confirmation that MPs will be able to ratify Brexit, a briefing paper on the impact on construction and housing, inquiries into construction skills, trade in services and the justice system post-Brexit, and details of a Great Repeal Bill. For all the latest updates, you can always visit the Brexit key developments: tracker or check out the Brexit landing page.
