All posts by busbyd

REUTERS | Yuriko Nakao
October 22, 2013

Yuanda followed in the TCC

We might have another 11 months until the Scottish referendum, but I’ll lay my cards on the table. I think partition of the UK would be a real shame so, if I had a vote (which I don’t), it would be “no”. While there are a variety of economic and political considerations, ultimately, it’s for purely selfish reasons. I love Scotland and its people, and am proud that we are part of the same united country. I would be sad to lose that.

I’m sure that civil servants and academics are currently considering the implications of independence on the Scottish legal system, particularly at Supreme Court level. However, my guess is that, at first instance and initial appeal levels, there are unlikely to be any differences. Scotland has its own legal system and, while judgments from England and Wales are persuasive, they are not binding.

In the field of construction law, we’ve seen Scottish and English judges taking different approaches to issues, for example concurrent delay and apportionment of global claims. Another area concerns the thorny subject of party costs in adjudications where the contract was entered into before the autumn 2011 amendments to the Construction Act 1996. That was highlighted again when Coulson J’s judgment in Pioneer Cladding v John Graham Construction was published earlier this month. Continue reading →

REUTERS | Eduardo Munoz
October 15, 2013

An adjudicator dealing with all defences, or not

Establishing whether an adjudicator had done his job properly is a difficult area and one that has troubled the courts on many occasions over the years. We have all read judgments following enforcement proceedings where one party alleged the adjudicator breached the rules of natural justice because he failed to consider a particular issue or defence. It is always a question of fact how the case turns out and whether the court enforces the adjudicator’s decision or not.

The issue came up again recently in Stuart-Smith J’s judgment in KNN Colburn v GD City Holdings and also in Akenhead J’s judgment in CG Group v Breyer Group. Jonathan has written about both judgments (see Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice and Take note of when your adjudication timetable starts). However, he did not specifically address the argument that Stuart-Smith J’s judgment may be in conflict with Akenhead J’s judgment. Continue reading →

REUTERS | Ahmad Masood
October 7, 2013

What’s in a name in a contract?

I have not seen cases about inserting the wrong name in a contract for ages. They must be like London buses. None come along for ages and then two come along in quick succession. That is exactly what has recently happened. Over the summer we’ve had Henderson J’s decision in Derek Hodd Ltd v Climate Change Capital Ltd and then Ramsey J’s decision in Liberty Mercian Ltd v Cuddy Civil Engineering Ltd.

Both cases concerned the not uncommon mistake of using the wrong name from a group of companies when drafting the contract. It may appear obvious but it is clearly essential to correctly identify the parties to a contract, otherwise there will be no valid contract to enforce. These cases both raise questions about “misnomer” where there is the wrong or inaccurate use of a name or a term (misnomer allows the court to substitute the correct name for an incorrect one, but the test is not an easy one). Continue reading →

REUTERS | John Kolesidis
October 1, 2013

Should I stay or should I pay now? Adjudication and insolvency

I may have tweaked a line from The Clash’s, “Should I stay or should I go now“, but applying for a stay of execution in adjudication enforcement proceedings seems to be on the increase, at least so far as reported judgments are concerned. I can think of at least four cases since May, and my take is that it is a reflection of the difficult economic circumstances that many construction (and other) companies find themselves in, combined with the impact of the payment provisions brought in by the amendments to the Construction Act 1996.

Continue reading →

REUTERS | Mike Blake
September 30, 2013

September 2013 digest: it was all about collateral warranties

Jennifer Hanson, Collateral Damage:

“The sweet September rain chased away the sun
Darkened up my skies as sorrow sweetly hung.”

As autumn approaches, so does the start of the Michaelmas court term. While the majority of court users may have been enjoying the summer recess (and the end of  a wonderful summer), a small team went before Akenhead J on a CPR Part 8 application to ask whether a collateral warranty was a construction contract. If it was, they could adjudicate their dispute. To the surprise of many, the court said yes. James Ladner told you about the judgment, John Hughes D’Aeth explained why he thinks the judgment is wrong and Matt Molloy discussed its implications for adjudicators and adjudication. We anticipate that many more column inches will be devoted to this judgment over the coming months. Continue reading →

REUTERS | Kim Hong-Ji
September 24, 2013

Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice

It was Mick Jagger that famously sang “You can’t always get what you want”. Well Mick, I’m pleased to report that I have got what I want; a case that proves the point I was making in a recent blog.

Back in July, I wrote about ABB Ltd v BAM Nuttall Ltd in which Akenhead J found that the adjudicator had committed a serious breach of the rules of natural justice by deciding a case on the basis of a clause that neither party had mentioned or even argued. At the time, I stressed that such cases are relatively rare, and that commentators, parties, and so on, should not get carried away on a wave of hysteria. The defendant in CG Group Ltd v Breyer Group Plc raised similar arguments, but this time Akenhead J found that the adjudicator had not breached the rules of natural justice. Continue reading →

REUTERS | Tobias Schwarz
September 17, 2013

Are adjudicators applying the “new” payment regime correctly?

The post-summer holiday construction law party season is well under way. So far I’ve been lucky enough to mix with the flamingos at Kensington roof gardens and the opera goers at Covent Garden. It was at one of these events that a couple of people, I’ll call them Jack and Jill, had a bit of a moan and claimed that some adjudicators were not observing the requirements in the Construction Act 1996 regarding payment notices and pay-less notices. Given Jack and Jill’s moans and the fact that we’re almost two years into the new payment regime, I thought that it was a good opportunity to review how the new payment regime is working.

Continue reading →

REUTERS | Jumana El Heloueh
September 3, 2013

Bias revisited – keeping your own counsel

Back in June, I wrote about Peter Smith J’s judgment in Mengiste v Endowment Fund for the Rehabilitation of Tigray and others. The post was all about a recusal application and, at the time, I drew parallels between the allegations of judicial bias in Mengiste and a challenge to an adjudicator’s jurisdiction.

Mengiste has recently been before the Court of Appeal. Lady Arden gave the leading judgment and it makes interesting reading, not least because she concludes that the judge should have recused himself because there was apparent bias. Continue reading →

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