Practical Law

Have you read the SCL’s delay and disruption protocol? I am sure you have, as the SCL website notes that it has been downloaded 38,500 times. But if not, I would recommend it to you, in particular its helpful glossary of terms, its reminder of the various formulae for calculating lost overheads and profit, and … Continue reading Judicial treatment of delay analysis: raw data preferred →

As construction disputes lawyers, we see our fair share of settlement agreements. And not just the traditional full and final settlements, but also one page final account settlements, and “line in the sand” agreements in which the parties seek to renegotiate elements of the contract while it is in progress. These “line in the sand” … Continue reading Re-baselining construction projects: drawing a line in the sand →

On the face of it, the judgment in North Midland Building Ltd v Cyden Homes Ltd is one to which you might say “so what”? The parties agreed in their contract to disregard the effect of any concurrent delay in assessing the contractor’s entitlement to an extension of time. Surprise surprise, the court gave effect … Continue reading Another “nail in the coffin” for the prevention principle? →

It has been almost a month since electronic working became compulsory for professional users of the Rolls Building courts, soon to be called the Business and Property Courts, which Paul Darling OBE QC discusses this week. This has come as a shock to many people, although we have been using the scheme for nearly two years … Continue reading Compulsory electronic working in the Rolls Building: time to reflect →

In April this year I looked at the “new test” (set out in Cavendish Square Holdings BV and another v El Makdessi) for determining whether or not a contractual provision is a penalty. Last week, the Court of Appeal overturned the decision at first instance, and struck out the relevant clauses as penalties. In doing so, … Continue reading Penalty clauses: genuine pre-estimate of loss versus commercial justification →

I recently advised on the question of whether a liquidated damages clause was a penalty. My attention was drawn to the recent case of Cavendish Square Holdings BV and another v El Makdessi. You may not have come across this judgment, as it is not a construction case, and does not concern liquidated damages. Rather, the … Continue reading Penalty clauses: does the punishment fit the crime? →

When negotiating commercial contracts, parties are often preoccupied with what level of obligation to accept, whether this is “reasonable endeavours”, “best endeavours” or some other standard. Alternatively, they use such terms as some sort of compromise wording where they can’t quite agree or identify what is actually required. Importantly, they often neglect to consider the … Continue reading Being certain in your endeavours →

Persistent late payment or non-payment of invoices may constitute a repudiatory breach of contract in some situations, but not in others. It is not always easy to spot the difference. In the current economic climate, this has become a common problem. Employers are reluctant to make payments to contractors who are on the brink of insolvency, … Continue reading Termination or repudiation: that is the question →

What is “Adj-Med”? In their blog posted on 29 October, PLC Construction referred to the new adjudication rules launched by CEDR Solve. These provide that, once the adjudicator reaches a decision, he may invite the parties to take part in a mediation. He does not reveal his decision to the parties, unless the mediation is … Continue reading “Adj-Med”: a new and improved form of ADR? →