All posts by busbyd

REUTERS | Sharif Karim
December 6, 2011

A Christmas (adjudication) Carol

Well, Christmas is almost upon us and the television is already full of adverts of what we can look forward to watching over the festive period. As well as another heart-stopping instalment of Downton Abbey, I’m rather hoping A Christmas Carol will be on (the Muppets version obviously).

Rather like Ebenezer Scrooge in the Dickens classic, I can’t help thinking that some of the parties who end up in serial adjudications, which are followed by enforcements in the TCC, appeals, deals, etc, are haunted by the “Ghost of Adjudications Past”, or perhaps wish that they had been visited by the “Ghost of Adjudications Yet to Come” at the outset of their disputes, or even before they entered into the contract! One such set of parties might be those involved in PPL v Corinthian Nominees. Continue reading →

REUTERS | Andrew Winning
November 30, 2011

November digest 2011: new standard documents and adjudication

Percy Bysshe Shelley, Hymn to intellectual beauty:

“There is a harmony in autumn, and a lustre in its sky, which through the summer is not heard or seen, as if it could not be, as if it had not been!”

As November ends, so does autumn. The days are getting shorter and the nights are lengthening as the winter solstice draws near. For some of us (in the south east at least), it hasn’t always felt like winter was on our doorstep, with one of the warmest and driest Novembers on record, and many leaves still clinging to the trees. Continue reading →

REUTERS | Jason Lee
November 29, 2011

Adjudicators’ decisions

Regular readers of this column will note that I have, on numerous occasions over the last three years, set out my views on an adjudicator’s actions (whether in terms of what they have or have not done, or have or have not decided). Well this post is no different.

Just a few weeks ago I wrote about why I thought it was fair that adjudicators should get paid, even when their decisions were unenforceable. I know not everyone shares that view and after receiving some well-made responses to my post, I’m now wondering whether I should clarify it and say “yes, but…” in true lawyer style, since I’m beginning to think that, like all things, there must be exceptions to that rule. The judgment in Carillion v Smith also interested me and, in particular the timing of the decision in the context of a Part 8 application. Continue reading →

REUTERS | Neil Hall
November 29, 2011

Can the employer use signed draft documents in place of fresh engrossments?

This post uses a recent case to consider whether a draft collateral warranty, signed as a deed, can be used by an employer in place of a formal engrossment. Can an employer complete the missing details and use the collateral warranty to give rights to a beneficiary? Might a contractor be able to stop the employer using and relying on that executed draft? Continue reading →

REUTERS | Jason Lee
November 22, 2011

NAP v Sun-Land: not such a bad result after all?

Last week Matt blogged about the case of NAP v Sun-Land. He made the point that “it was clear to me that the employer’s representatives were less familiar with the adjudication process than one might like…”. While that may well have been the case, the employer’s representatives nevertheless succeeded in achieving a partial stay of the adjudicator’s decision, so arguably, it was not such a bad result after all.

Let me explain how they achieved the partial stay and the interesting issue that arises from the case. Continue reading →

REUTERS | Petar Kujundzic
November 21, 2011

Do adjudication rules’ costs provisions comply with amended Construction Act 1996?

There has been considerable debate over the meaning of section 108A of the Construction Act 1996 (as introduced by the LDEDC Act 2009). Most of that debate has centred on the interpretation of section 108A(2) and whether imprecise drafting means that something like a Tolent clause may still be permitted in certain circumstances. However, some in the industry are beginning to raise concerns about whether a number of well-known adjudication rules comply with section 108A(1). Part of this concern relates to the meaning of “allocation”. Continue reading →

REUTERS | Christian Charisius
November 15, 2011

Horses for courses in adjudication

Last week, I commented on the importance of the parties ensuring their dispute is in a safe pair of hands. At the time, I was alluding to the importance of getting a competent adjudicator, who knows what he is doing and will not let the parties down (by which I mean, having an enforceable decision). However, my “safe pair of hands” idea could apply equally to a party’s own representatives.

This thought was brought home to me most recently by Edwards-Stuart J in NAP v Sun-Land. Continue reading →

REUTERS | Jason Lee
November 8, 2011

Buying a property? Don’t forget about the Party Wall Act 1996

When buying a property, the Commercial Property Standard Enquiries (CPSE.1) (enquiries 1.3 and 2) provide standard form, specific enquiries about party walls. However, those enquiries only ask about breaches of the Party Wall etc. Act 1996 (PWA 1996) relating to party structures on the boundary of the site, and to provide copies of any notices, awards and agreements that might exist in connection with those party structures. The answers to those enquiries will not provide any illumination as to works yet to be carried out, or liabilities and expenses that are still to accrue following a sale of the land.

If the PWA 1996 may apply to works that have been or are in the process of being carried out (or are planned), what should a buyer be looking out for? Continue reading →

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