Sir Isaac Newton (attributed):
“I don’t know what I may seem to the world, but as to myself, I seem to have been only like a boy playing on the sea-shore and diverting myself in now and then finding a smoother pebble or a prettier shell than ordinary, whilst the great ocean of truth lay all undiscovered before me.”
August, a month of languid summer days spent by many on the beaches of faraway shores. For those who have remained closer to home, it has been a quiet month, and it feels like the calm before the storm of autumn (although, for some, it may feel like that has already arrived).
The courts may be part-way through their summer recess (the Michaelmas term does not start until 1 October), but that hasn’t stopped a number of judgments being reported, with a variety of issues under consideration, including:
- Granting declaratory relief regarding payment and pay less notices, and an employer’s right to deduct liquidated damages, which Matt Molloy considered.
- A claimant’s “grossly excessive” costs budget, which Callum Johnson discussed.
- Whether a contractor was entitled to terminate its engagement under a contract based on the FIDIC Red Book (1999).
- The impact of a party’s initial refusal to mediate on its costs recovery.
- An expert’s role in litigation, and when the court should approve an expert.
- Whether insurers could avoid a public liability policy for non-disclosure and misrepresentation.
The High Court (including the divisions in the Rolls Building) has a new website and, when term starts again, the 81st CPR update will come into force. We will then have a pilot on shorter and flexible trials running, including in the TCC.
No adjudication enforcement cases were reported during August, and the only comment we had on the topic came from David Sheard, who looked at the burden of proof, adjudication and Aspect v Higgins. Other comment this month included:
- Simon Liddiard on mistake, implied terms, ambiguity and Arnold v Britton.
- Matt Molloy looking at bias and judicial recusal following Peter Smith J’s trip to Italy and his recusal in Emerald Supplies v British Airways.
- Jonathan Cope discussing the role of an expert determiner, appointed in Shafi v Rutherford. He also looked at Rider 1 to the SCL’s delay and disruption protocol.
- Jancyn Gardiner highlighting the problems with hybrid bonds, following Caterpillar Motoren v Mutual Benefits Assurance Company.
On the public procurement front, there was plenty of activity with policy notes on procurement procedures and transparency of contract information, the Scottish government’s analysis on changes to its public procurement rules, a consultation on the Concessions Directive and Utilities Directive, the Northern Ireland High Court considering disclosure in a procurement dispute and our quarterly legislation and policy review.
Elsewhere, we saw a consultation on the apprenticeships levy, public procurement requirements for apprenticeships, a new invasive non-native species strategy, guidance on market access for small businesses, two new notes on limiting liability in business-to-business contracts, new notes on EPCs, DECs and ACRs and updated materials on NEC3 Professional Services Contracts.
…and finally, we couldn’t end without referring to the Ashes and England’s 3:2 win over Australia.