REUTERS | Brian Snyder

August 2014 digest: autumn approaches

Lord Byron, Don Juan, st.42:

“The English winter – ending in July, To recommence in August.”

As the quote suggests, August has not been the warmest of summer months this year and autumn feels as if it is approaching fast. The end of endless sunshine seemed to coincide with the start of the school holidays and, while many escaped the UK’s shores for sunnier climates, those who stayed have witnessed a rather quiet month.

How time flies. This time last year we were telling you about Practical Law Construction joining the Ask party. You can contact us using the “Ask a question” button on the Practical Law Construction homepage. Three years ago, the construction industry was preparing for the changes to the Construction Act 1996 and we were telling you all about that. To reflect the passage of time, we have updated all our materials, particularly in relation to payment, suspension and adjudication.

If you wish to add your insights from practice to the discussion, you are welcome to comment on any Ask answer we publish. However, if you are more familiar with commenting on our blogs, during August we saw a number of interesting topics under discussion:

  • Lucy Garrett of Keating Chambers highlighted some of the pitfalls of drafting consequential loss exclusion clauses.
  • Elizabeth Repper of Keating Chambers and Lee Cookson of EC Harris discussed some of the advantages of mediating a delay claim and how best to present the claim at a mediation.
  • Jennifer Varley of Berwin Leighton Paisner LLP considered whether it is time to change “time at large”.

The courts may be in recess until the Michaelmas term starts in October, but a number of judgments were still published, considering whether:

  • An architect’s appeal against a finding that it was in breach of its duty of care to the purchasers should be allowed (it was).
  • Under an NEC2 ECC, as a notice of dissatisfaction had not been served, time for the bringing of arbitration proceedings should be extended under the Arbitration Act 1996 (it shouldn’t).
  • Privileged documents should be disclosed on the basis of the iniquity exception (they should), which Alice Sims of Keating Chambers discussed.
  • A buyer was liable to pay VAT on the purchase price of a freehold commercial property (it wasn’t).

Experts are often in the news for the wrong reasons and this month was no exception. Michael Mendelblat considered some of Leggatt J’s views and, in a rare decision, the Court of Appeal upheld an appeal against an expert determination. In an effort to improve matters, the CJC has published revised guidance on instructing experts and the RICS has published revised guidance on surveyors acting an experts, which Jonathan Cope reviewed.

It has been another quiet month on the adjudication front, with no judgments to report on. Matt Molloy considered the disclosure of without prejudice material in adjudication and looked at the reasonableness of adjudicators’ fees, while Jonathan Cope discussed challenging an adjudicator’s decision (following Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd).

On the public procurement front, Calum Lamont considered interim relief in procurement challenges and the American Cyanamid test. We also provided you with July’s case digest, a legislation and policy review and told you about the results of a review of tax and public procurement policy.

Finally, Nick Boles MP is now the new construction minister.

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