REUTERS | Robert Pratta

April 2014 digest: “the times they are a-changin”

Bob Dylan, Times they are a changing:

“Come writers and critics who prophetize with your pen, keep your eyes wide, the chance won’t come again

And don’t speak too soon for the wheel’s still in spin, and there’s no tellin’ who that it’s namin’

For the loser now might be later to win, for the times they are a-changin’.”

April is derived from the Roman name Aprilis which, in turn, comes from the verb aperire, meaning “to open”. As trees and flowers begin to open, it is an apt name for a month characterised by seasonal changes. Significant legal changes this month have included:

  • News that the latest version of the TCC Guide, amended to reflect the Jackson reforms and more recent developments in costs and case management, would be published shortly.
  • The bi-annual CPR update which, among other things, has extended the costs management budgeting rules to all Part 7 multi-track cases under £10 million and confirmed that it does not automatically apply to Part 8 claims.
  • The introduction of a single County Court and an increase in court fees.

Costs and case management issues continue to occupy significant amounts of court time (and James Bickford Smith discussed the increasing willingness of judges to use their case management powers). While there are too many cases to mention them all individually, several  judgments stand out because the court held that:

  • Filing a costs budget one day late was a trivial breach and the sanction in CPR 3.14 did not apply.
  • The Mitchell guidelines do not apply if an application for an extension of time is made “in-time”.
  • When granting relief from sanctions, the factors specified in CPR 3.9 will not always prevail.

Elsewhere, the courts considered whether:

  • A net contribution clause in an architect’s professional appointment was effective (it was), which John Hughes D’Aeth considered.
  • Claims for breach of warranty had been issued and served in time within the meaning of the parties’ agreement (they had).
  • An absolute obligation and an obligation to carry out design using a required level of skill and care can coexist in a construction or engineering contract (they can).
  • An employer was entitled to terminate a contract (it was).
  • A deed entered into by the parties to address issues arising from the building owner’s development governed the parties’ dispute, not the Party Wall etc. Act 1996 (it did).

With regard to issues that arise in adjudication enforcement proceedings, the court considered whether:

  • Service of a party’s notice of adjudication meant the contract’s saving provision was triggered (it was). Matt Molloy considered the service points and James Clarke looked at the consequences of triggering the saving provision.
  • The parties’ sub-contract was a construction contract (it was) as the “primary activity” exception in section 105(2)(c) of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) did not apply. Jonathan Cope suggested Room 101 may be the best place for section 105(2).
  • In Scotland, a party was entitled to a grant of interim interdict (an injunction) to prevent a party adjudicating (it wasn’t).
  • In Northern Ireland, an adjudicator’s interpretation of the compensation event provisions of the NEC3 Professional Services Contract was correct (it was). Matt Molloy looked at whether this was really an appeal of the adjudicator’s decision.

Adjudication often ignites debate and this month:

In other news, David Sears QC discussed what the relevant date is for limitation purposes in economic loss claims after Co-Operative Group Ltd v Birse Developments Ltd, Elizabeth Repper answered some mediation FAQs, Edward Davies looked at solving commercial problems, we told you about the HSE’s consultation on the CDM regulations and a new construction payment charter, we updated our note on reforming the EU public procurement regime  to reflect the coming into force of three new directives, published a new note on identifying and managing project finance risks, saw survey results on the use of BIM and industry standard BIM PAS 1192-3, reported on changes to the meaning of “mainstream” contractor and changes to interest payments under the Construction Industry Scheme (CIS), gave you details of infrastructure projects starting or completing in 2014-15 and  told you about changes to the EPC regulations.

It looks like we might need those May bank holidays to get over April!

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