All posts by busbyd

REUTERS | Tobias Schwarz
August 7, 2012

Back to basics – loss and expense and damages claims

A few weeks ago I gave you some of my practical tips for making or defending extension of time claims in adjudication. This week I thought I’d give you some practical tips concerning money claims, by which I mean, claims for loss and expense or damages.

I appreciate that it might appear that I’m “teaching grandmother to suck eggs”, but I make no apologies because we can all do with a refresher of the basics at times. I know I certainly can. Indeed, I suspect that a surprising amount of us have a Nutshells or equivalent hidden away in the desk drawer and refer to it in times of need. Alternatively, we can just look at PLC! Continue reading →

REUTERS | Kim Hong-Ji
August 7, 2012

The ICC response to arbitration trends: construction and engineering disputes

Last week I looked at some current trends in ICC arbitration. I highlighted some of the parties’ concerns, in particular the time and expense of pursuing arbitration.

This week, my focus is on the International Chamber of Commerce’s (ICC) response: in particular, its new arbitration rules (the 2012 ICC Rules).

Continue reading →

REUTERS | Brian Snyder
July 31, 2012

July 2012 digest: let the Games begin!

Shakespeare’s The Tempest:

“Be not afeard; the isle is full of noises,

Sounds and sweet airs, that give delight and hurt not.

Sometimes a thousand twangling instruments

Will hum about mine ears, and sometime voices

That, if I then had waked after long sleep,

Will make me sleep again: and then, in dreaming,

The clouds methought would open and show riches

Ready to drop upon me that, when I waked,

I cried to dream again.”

Whatever you thought of the spectacular opening ceremony, from Shakespearean quotes to Wiggo’s bell-ringing and from JK Rowling reading JM Barrie to the 204 copper petals, the London 2012 Olympic Games and Paralympic Games are well and truly underway. The British team has its “top four” medal target, with hopes of surpassing the 47 they won in Beijing four years ago, and the first medals have already been handed out. Continue reading →

REUTERS | Alexander Demianchuk
July 31, 2012

Using experts in adjudication

The SCL has recently launched a consultation on the use of experts in construction disputes. It wants to know why parties instruct experts, how parties use their experts and whether the tribunal should have a greater say in the expert’s role in the dispute.

The SCL’s July newsletter suggests that the consultation aims to “provoke wide-ranging discussion” and to “reflect some concerns expressed, for example, about the cost of expert evidence and the independence of some [experts]”. The consultation is looking at all forms of tribunal, including the courts, arbitration, adjudication and other forms of ADR, like mediation and expert determination. Continue reading →

REUTERS | Aly Song
July 24, 2012

All in an adjudicator’s day’s work

As I’ve said before, it is part and parcel of acting as an adjudicator that you may, one day, find your actions being discussed in court, with one party challenging the enforcement of your decision. It hasn’t happened to me for a while, but it recently happened for the first time to my co-director, Jonathan. It’s a strange feeling, especially the first time it happens, and your natural reaction is to worry about what you did (or didn’t do), and to sit down and analyse whether you’d react the same way, the next time you are faced with the same sort of situation. It’s a bit like poring over your exam results and looking again at your exam paper, wondering if you went wrong, where you went wrong, and how you could have done better.

Continue reading →

REUTERS | Kim Hong-Ji
July 17, 2012

When a party seeks declarations in an adjudication

The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.

Continue reading →

REUTERS | Ina Fassbender
July 11, 2012

Ask the team: what is the net basis approach for extensions of time?

A subscriber recently asked us what was meant by the “net basis” (as opposed to the “gross basis”) for calculating an extension of time due to a contractor under a construction or engineering contract. This is just one part of the issues that surround concurrent delay in construction contracts and this post uses a simple example to identify the net basis and gross basis for an extension of time. Continue reading →

REUTERS | Paulo Whitaker
July 10, 2012

Perils of settling construction disputes

Anyone that swims in the pool of construction disputes will, at some point, have come across an agreement to settle a construction dispute. Lawyers will often pour over the wording in painstaking detail, arguing for the inclusion or exclusion of certain clauses. (I suspect there’s a stock list depending on whether they’re acting for the contractor or the client.) Even when, as James Clarke so aptly put it recently, you’ve reached the “stale sandwiches” stage of a mediation, lawyers will often make the parties miss the last tube home in order to argue over phrases such as “all and any claims”.

However, sometimes the parties themselves try and reach a settlement agreement without seeking legal advice, and that can lead to disastrous consequences for one or both of them. I doubt that there is a better case to illustrate this point than the recent TCC judgment in Point West London v Mivan. Continue reading →

REUTERS | Jason Lee
July 3, 2012

Are you paying a debt, or are you just paying?

I’m not really into labels (designer or otherwise). For example, I tell people that the label “letter of intent” is potentially misleading. Better to call it a “letter”, so that you are more likely to read it with an open mind, and work out what it actually says.

I have been looking at the JCT Design and Build Contract, 2011 edition (JCT DB11) for a new client who wanted some bespoke amendments. I read the whole contract from start to finish. Not something I do very often, but a worthwhile exercise. It’s too tempting (and takes less time) just to look at the parts that are under discussion. Anyway, as I was reading through, I noticed that some of the payment obligations say that money is to be paid (or recovered) “as a debt” and some don’t. Continue reading →

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