I’ll let you into a secret. While I’ve no doubt that partnering contracts can forge effective working relationships, it doesn’t follow that disputes won’t arise. I know I won’t be popular with certain sectors of the construction industry for saying so, but it’s true. Indeed, earlier this year, I was the adjudicator in a dispute under one of the popular standard forms of partnering contract.
An Employer may be torn between using the FIDIC Yellow Book and FIDIC Silver Book. The Yellow Book, a design-build contract, may give greater flexibility and a lower tender price. The Silver Book, an EPC or turnkey contract, should provide greater cost certainty and risk transfer. That tension may lead to an Employer trying to get the best of both worlds, by shifting Silver Book principles into what is ostensibly a Yellow Book contract.
One recent example of this trend is forms of highways contracts let in Romania and other CEE (Central and Eastern Europe) States. This post considers some of the ways an Employer may try to include Silver Book principles in a Yellow Book contract.
Earlier this year, I wrote about set-off in adjudication, particularly set-off and withholding notices following the judgment in Working Environments v Greencoat.
More recently in both Squibb Group v Vertase FLI Ltd and Beck Interiors v Classic, Coulson J in the TCC looked at the question of set-off against an adjudicator’s decision. Perhaps unsurprisingly, on both occasions he rejected the paying party’s attempt to reduce the sum due under the adjudicator’s decision. Continue reading
Pierre de Coubertin, the father of the modern Olympic Games:
“The most important thing in the Olympic Games is not winning but taking part; the essential thing in life is not conquering but fighting well.”
We are partway through the London 2012 Olympic Games and Paralympic Games and, so far, the British team has exceeded all expectations, with 65 medals and a top three placing. That is one place higher and several medals more than the 47 that the team won in Beijing four years ago. Let’s hope for the same success in the Paralympic Games, which have just got underway. Continue reading
Over the last year or so, we have posted a number of pieces about costs management. Initially we looked at the extension of the Birmingham costs pilot into all TCC and Mercantile Courts and, subsequently, sought to encourage practitioners to take part in the survey that was reporting on the extended pilot. Michael Mendelblat also drew parallels with the pilot running in defamation actions, and cautioned parties about the need to maintain up-to-date budgets during that pilot.
As the date for the “big bang” of the Jackson LJ reforms looms closer and the current costs management pilot is set to continue until the end of March 2013, we thought it was time to consider what is next for costs management. Continue reading
Each summer I normally spend some time updating my note on global claims. It’s not normally a particularly taxing job and, since the Scottish case of John Doyle Construction Ltd v Laing Management (Scotland) Ltd, there haven’t really been any significant developments in the law. However, this summer has been somewhat different, and my task has been significantly more taxing. Unless you’ve been utterly consumed with the heroics of Hoy, Ennis, Farah and the rest of Team GB, you will have read (or at least heard about) the important case of Walter Lilly v Mackay. One of the many subjects Akenhead J dealt with is global claims, and what he said is of great significance.
A subscriber recently asked whether, if the employer under a building contract paid its contract administrator a percentage of the contract sum, that might affect the professional consultant’s duty to act independently and impartially.
This Ask the team considers some of the practical and legal questions involved, and suggests ways of avoiding the issue.
Two recent judgments caught my eye and, in particular, the references to an expert who appeared as an expert witness in both judgments.
For those that did not notice, the expert was instructed on behalf of:
I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ practice note on surveyors acting as expert witnesses), but that is as far as it goes.
Looking at the law reports, some may think that the only thing the TCC ever deals with these days is the enforcement (or not) of adjudication decisions. Whatever happened to construction law? Well, luckily it still lives and breathes. In Walter Lilly & Co Ltd v Mackay and DMW Developments Ltd, Akenhead J delivered a judgment that goes to the heart of many of the burning issues that have been causing construction lawyers to scratch their heads.
