Evelyn Waugh, Brideshead Revisited:
“If it could only be like this always – always summer, always alone, the fruit always ripe and Aloysius in a good temper…”
August, often a quiet time, filled with lazy days (because of the school holidays) and a little bit of cricket. This year, August saw two notable judgments handed down out of term:
- At one end of the spectrum, in the Supreme Court, Lord Neuberger opined on a fitness for purpose obligation, which both John Hughes-D’Aeth and Matthew Finn looked at.
- At the other end of the spectrum, O’Farrell J handed down an ex tempore judgment in the TCC dealing (in part) with the recoverability of adjudication costs under the Late Payments Act 1996, which Matt Molloy discussed.
Both will have far-reaching implications for the construction industry.
It may be vacation time, but we reported on a number of judgments, including whether insurers could be joined under the Third Parties (Rights Against Insurers) Act 2010, what the transitional provisions of that Act mean and issues of contract formation (when deciding whether a medical practitioner practised without professional indemnity insurance).
The TCC also looked at whether a settlement had been deceptively induced by a practical completion certificate, granted an interim injunction allowing access to a building information model, gave an engineering expert wide access to the claimant’s production process and granted relief from sanctions, even though the cost budget was filed late (which Sarah McCann discussed).
If you want to avoid disputes on your projects, take a look at what Paul Cacchioli and Stephen Blakey are piloting on Network Rail’s projects, and if you want to know what is happening in Abu Dhabi, see what Richard Dupay has to say. Closer to home, Jonathan Cope discussed the role of the project monitoring surveyor, while Matt Molloy looked at an adjudicator’s payment terms and the payment issues arising from ICI v MMT.
On the contract front, we continued producing materials on NEC4, with notes on disputes under options W1, W2 and W3 and the Supply and Supply Short Contracts. We also published a new note on the key cases on the NEC suite of contracts, the NBS launched its latest construction contracts survey and Ben Mellors started his new series on the FIDIC suite of contracts.
In other news, the terms of reference for the Grenfell Tower public enquiry and the independent review of Building Regulations and fire safety were published, there was a briefing paper on construction defects in new-build housing, Practical Law launched its new insurance collection (which includes a section on construction and engineering), and there was a flurry of activity on the public procurement front. The TCC lifted an automatic suspension and the Crown Commercial Service launched a new Estates Professional Services framework and provided guidance on its aggregation services. The LGA has also called for the simplification of the EU procurement rules post-Brexit.
Brexit doesn’t often get mentioned in this digest, but it is worth noting that the government has published papers on enforcement and dispute resolution, cross-border judicial co-operation, the availability of goods, the importance of trade and customs arrangements.