Lord Denning in Packer v Packer [1953] 2 All ER 127:
“What is the argument of the other side? Only this, that no case has been found in which it has been done before… [but] [i]f we never do anything which has not been done before, we shall never get anywhere.”
Lord Denning may have said this in the context of a family law case, but it could be said to apply equally to what the country now faces in its negotiations with Europe, which we now know will be taken forward by Theresa May’s government. The new legislative programme was set out in the Queen’s speech, although it didn’t contain much for construction lawyers (and was only just passed without amendment).
Other new things in June included the much-heralded NEC4 suite of contracts and the final tranche of the JCT 2016 Editions. We also told you about the ACE Agreements 2017 Editions and plans to extend the UK Guarantees Scheme to construction guarantees.
There was only one adjudication case to report on this month, but that didn’t stop the TCC delivering some other interesting judgments, most notably in Lea Valley v Derbyshire. We seldom see party wall issues before the courts, let alone in the High Court, so we are sure Tim Reid’s views on the two cases will be widely read.
Other cases of note included the Supreme Court considering the basis of damages for wrongful repudiation of a charterparty, the Court of Appeal looking at costs budgets and incurred costs (which Elizabeth Repper mentioned as part of her mediation update), section 4 of the Defective Premises Act 1972 and whether lenders were using written standard terms. Also, the TCC refused a non-party costs order, decided a dispute about an integrated technology system and heard an application for specific disclosure before hearing a public procurement dispute.
We also learnt that the Business and Property Courts of England and Wales (B&PCs) may be launching in July, but will not start working until 2 October 2017.
There was plenty of comment this month, with:
- Richard Davies addressing some of the issues from the FIDIC White Book, 2017 edition.
- Melissa Shipley discussing contract interpretation in Sutton Housing Partnership Ltd v Rydon Maintenance Ltd.
- Adriano Amorese explaining the rise of investment in “sheds”.
- Michael Mendelblat considering extensions of time following Carillion v Emcor.
- Matt Molloy referring to adjudication and payment in Canada and incorporating main contract terms into a sub-contract following Dawnus Construction Holdings v Amey LG Ltd.
- Jonathan Cope highlighting that an arbitrator has a lien over the award and issues from Structure Consulting Ltd v Maroush Food Production Ltd.
- Catherine Gelder discussing exclusion clauses following Persimmon Homes Ltd v Ove Arup & Partners Ltd.
- Michael Tetstall looking at practical completion following GB Building Ltd v SFS Fire Services Ltd.
And finally, it is hard to look back on June without remembering the tragic events at Finsbury Park, London Bridge and Grenfell Tower, which followed so closely behind similarly tragic events at Manchester Arena and in Westminster. Michael Bowsher QC picked up on one aspect, when he discussed some of the procurement issues. Don’t look back in anger became the symbol of Manchester and London has a Bridge over Troubled Water to help ease the pain.
