All posts by busbyd

REUTERS | Ahmad Masood
February 14, 2012

Adjudication “torpedoed” by adjudicator’s frolic

A project that finished late, with issues over the final account caused, in part, by delays, and with the parties arguing over who was liable for those delays (unsurprisingly, weather was one of the reasons cited, as was asbestos removal).

So far, this sounds like many other construction disputes. However, the contract in Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board was to remove the remains of a boat sunk to stop torpedoes being fired into Dover harbour during the first world war. It was a wreck-removal agreement, with a lump sum price of almost £1.8 million and with scope for certain extra costs to be priced and paid for. The contractor (Herbosh-Kiere Marine’s) disputed final account claimed just under £4 million. That is a lot of extras. Continue reading →

REUTERS | Yuriko Nakao
February 13, 2012

Adjudication and limitation: adjudication unlimited?

Recently, I had reason to think about whether the Limitation Act 1980 applies to adjudication. This seems like a “no-brainer” – of course there must be a time limit on the ability to refer a construction dispute to adjudication. Remarkably, though, there is no clear answer and judicial and other opinion on the matter is inconclusive and hard to come by.

I have split my thoughts into two parts – this post is part one. Continue reading →

REUTERS | Toby Melville
February 9, 2012

It’s time to have your say about costs management

A little over four months ago, the costs management pilot that had been running in Birmingham was extended to all TCC and mercantile courts until 30 September 2012. The team monitoring the pilot has now published an interim report.

Some may consider it odd that an interim report has been published so early into the pilot, but perhaps given the initial lack of enthusiasm for the pilot, particularly in London, this is a way for its authors to gather support and encourage more TCC users and its judges to participate. Continue reading →

REUTERS | Andrew Winning
February 7, 2012

RICS’ conflicts guidance

Some of you may have seen that the RICS has published guidance on how to deal with conflicts, helpfully called Conflicts of interest. I should declare an interest at the outset (not a conflict though!). While I wasn’t an author, I am chairman of the RICS’ Dispute Resolution Professional Group (DRPG) and the DRPG is responsible for standards concerning dispute resolution, including this guidance note – apologies if I therefore appear biased!

The guidance note is available to RICS members to download from the RICS website and to non-members to buy from www.ricsbooks.com. It has been prepared not only to give guidance to surveyors appointed as dispute resolvers on how to deal with conflicts, but also to be of assistance to the parties and their representatives. Continue reading →

REUTERS | Mike Segar
January 31, 2012

January 2012 digest: implied terms, party walls and procurement

Samuel Taylor Coleridge, Work Without Hope:

“And Winter slumbering in the open air, wears on his smiling face a dream of Spring!”

Before we turn our attention to events in 2012, it is sensible to start with two cases from the very end of 2011 (and ones that (almost) got away). After last month’s digest was published, Coulson J in the TCC considered implied terms in a sub-contract, withholding notices and declaratory relief under CPR Part 8. Since then, Leander v Mulalley has attracted considerable attention, both in terms of the judge’s comments on withholding notices and also its consideration (and rejection) of an implied term to proceed regularly and diligently with the works.

The other judgment that had construction practitioners expressing their views was Jackson LJ’s Court of Appeal decision in Lanes v Galliford Try. This time it was on the future of forum shopping in adjudication and apparent bias. Continue reading →

REUTERS | Petar Kujundzic
January 31, 2012

Phoning a friend in adjudication

The phrase “I’ll phone-a-friend” may have started off as a lifeline in the television quiz show, Who wants to be a millionaire?, when people couldn’t answer a question, or were unsure as to the correct answer, but it has recently taken on a whole new meaning in the world of adjudication.

If you are not sure what I am talking about, I recommend you take a look at Lord Menzies’ judgment in Highlands and Islands Authority Ltd v Shetland Islands Council. Continue reading →

REUTERS | Lisi Niesner
January 24, 2012

Forum shopping in adjudication

My last post looked at Jackson LJ’s Court of Appeal judgment on adjudicator bias in Lanes v Galliford Try. I had been wondering whether to address the “forum shopping” point when I saw PLC’s comment appear on my post. That, coupled with the fact that I’ve recently been approached to act in a matter where the ANB appointed an adjudicator that neither party wanted, was all the impetus I needed.

I agree with PLC’s comment that the forum shopping point has dominated the legal columns of the trade press, but wonder whether those commenting realise how common the practice really is? Continue reading →

REUTERS | Kim Hong-Ji
January 17, 2012

Remember: the grounds for withholding must be valid

Or should that be “The return of the pink socks”?

I appreciate that many of you won’t thank me for mentioning Christmas now that the new year is upon us, but the courts provided us with some last minute reading in the week leading up to… the end of Advent.

Not only did the Court of Appeal hand-down the eagerly awaited appeal judgment in Lanes v Galliford Try (which Matt discussed last week), but the TCC also handed-down three judgments, the most interesting of which (to construction dispute practitioners) was Leander Construction v Mulalley.  Continue reading →

REUTERS | Carlos Barria
January 11, 2012

Ask the team: what is an architect’s lien and when can I use one?

A lien is a right that entitles a party to hold on to assets in its possession pending payment of a debt owed to it. Specifically for architects (and other professionals), if the architect has prepared plans, it may hold those plans pending payment by its client. In England and Wales it is relatively rare to see a dispute about an architect’s lien reach the courts, but liens can and do arise.

Continue reading →

REUTERS | Yuriko Nakao
January 10, 2012

Court of Appeal decides adjudicator not biased after all

Last summer people were talking about HHJ Waksman QC’s judgment in Lanes v Galliford Try, not least because it looked to mark the end of adjudicators giving the parties their provisional view of the case they were being asked to decide. However, it seems that we don’t need to be so worried after all, as Jackson LJ in the Court of Appeal has reversed that decision.

Continue reading →

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