All posts by busbyd

REUTERS | Kim Hong-Ji
July 3, 2012

Contracts not in writing

Following the repeal of the in writing or evidenced in writing rule in section 107 of the Construction Act 1996, the scope of the disputes referred to adjudication is changing. Adjudicators are now being faced with disputes where the parties:

  • Have a written contract, but disagree over whether a particular term was subsequently agreed orally (like a variation).
  • Disagree over whether they have a binding contract at all.

One of the issues is whether adjudicators are up to this challenge. Continue reading →

REUTERS | Neil Hall
June 28, 2012

June 2012 digest: a diamond jubilee and the jet stream

Alfred, Lord Tennyson, To the Queen:

“Her court was pure; her life serene; God gave her peace; her land reposed;

A thousand claims to reverance closed, in her as Mother, Wife and Queen.”

As a nation, we are obsessed with the weather. Regular readers of this digest will know that it features prominently here too. So it is no surprise that June’s digest starts with comments about the never-ending wind and rain, which didn’t appear to dampen spirits too much over the double bank holiday and the Queen’s diamond jubilee celebrations, even if it did prevent much play during the third test at Egdbaston and has already affected play at Wimbledon. We can only hope that the jet stream meanders north, to its more usual summer position, in time for the start of the London 2012 Olympic and Paralympic Games. Continue reading →

REUTERS | Ilya Naymushin
June 26, 2012

Arbitration clauses, third party rights and stays

It seems that the question of remedies in arbitration for parties seeking to exercise rights under the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) was an afterthought in the Bill’s progress through Parliament.

At section 8, the Third Party Rights Act 1999 provides that if a third party’s right to enforce a contract term is subject to an arbitration agreement, the third party is treated as a party to the arbitration agreement in any dispute as to enforcement of the relevant term. In practice, this means that where the underlying agreement has an arbitration clause, the third party is forced to go to arbitration to enforce its rights if that is what the promisor insists upon (Nisshin Shipping v Cleaves & Co).

Blair J’s judgment in the Commercial Court in Fortress v Blue Skye is a variant on this theme. Continue reading →

REUTERS |
June 19, 2012

Adjudication and Part 8 – the latest instalment

I appreciate that I said in my last blog that I would follow up with practical tips concerning loss and expense claims, however since then a couple of interesting cases have emerged from the TCC so the practical tips will have to wait for another week.

One is WW Gear v McGee Group, which is another case where a party made a Part 8 application during the course of an adjudication. Continue reading →

REUTERS | Yuriko Nakao
June 12, 2012

Whatever next for adjudication enforcement?

I really thought we’d seen everything that adjudication could throw up, with all the legal twists and turns of the last 14 years, and then along comes another judgment to catch us all off-guard. While this case may only affect practitioners in Scotland, I think it is still worth mentioning, if only for the surprise factor. I am, of course, referring to Lord Malcolm’s judgment in Whyte & Mackay v Blythe & Blythe.

Continue reading →

REUTERS | Issei Kato
June 6, 2012

Back to basics – extension of time claims

At a recent conference, I was asked to sit on a panel to discuss time and money claims.  Each panellist was asked to give a short talk on the subject from the perspective of our backgrounds, and I therefore gave mine from the tribunal’s perspective. Given that I only had ten minutes, I focused on practical tips for assisting the tribunal when making or defending a time or money claim.

While many of the tips were quite obvious, it’s surprising how many time and money claims fail due to a lack of appreciation of the basics, so I thought I’d share some tips concerning extension of time claims. Continue reading →

REUTERS | Juan Carlos Ulate
May 30, 2012

May 2012 digest: Queen’s Speech and bonds

F. Scott Fitzgerald, The Great Gatsby:

“And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.”

Summer has finally arrived and, after all the rain over the last couple of months, it is a welcome thing, not least because we have the double bank holiday just around the corner.

Continue reading →

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