All posts by busbyd

REUTERS | Petar Kujundzic
July 26, 2011

Reasonableness of adjudicator’s fees – a victory for common sense

In adjudication there is always the potential of the losing party who is, probably, liable for some if not all of the adjudicator’s fees, trying to avoid paying those fees. If the losing party can dress that up as a challenge to the reasonableness of the fee they are being asked to pay, the more likely they will make the challenge.

Therefore, I was pleased to see the judgment in Fenice v Jerram Falkus which, I believe, reinforces the previously held view that the courts are unlikely to find that an adjudicator’s fees (both the hourly rate and time spent) are unreasonable. Continue reading →

REUTERS | Jason Lee
July 19, 2011

What does hold harmless mean? What is an indemnity anyway?

I was talking to a Dutch lawyer at a conference the other day. He asked me what “hold harmless” meant and whether it was necessary to use it when drafting an indemnity under English Law. The conversation went on to discuss whether giving an indemnity was better than an ordinary contractual obligation (or worse – depending on whether you are giving or receiving).

I suggested that there is a sort of a hierarchy in the drafting of contractual obligations. They seem to sit one on top of the other like layers in a wedding cake.

Continue reading →

REUTERS | Neil Hall
July 19, 2011

Scheme amendments published. Was it worth the wait?

It seems a long time since I wrote about the suggested amendments to the Scheme for Construction Contracts 1998 in England. It probably feels a long time because it was 15 months ago.

Over the last week or so the English, Welsh and Scottish governments have all published their amendments to the Scheme and the Scottish version of the Scheme. They are gearing up to the amendments coming into force this autumn, when the amendments to the Construction Act 1996 come into force.

We have been waiting a long time for this, but I wonder if it has been worth the wait. Before I comment on a couple of the changes, there is one thing I would like to say. Continue reading →

REUTERS | Eric Thayer
July 11, 2011

Destroyed by fire. The court can offer nothing else but its sympathy

This is the position that Mr Harooni recently found himself in, after his business was destroyed by fire (Farzad Harooni v Rustins Ltd).

Mr Harooni had a warehouse in a large industrial block of warehouses. Mr Harooni’s next door neighbour (Rustins) stored paint and other flammable material in its warehouse. One night a fire began that spread throughout the complex, destroying various warehouses, including Mr Harooni’s warehouse. Unfortunately Mr Harooni did not have valid insurance in place. He sued Rustins, the owner of the paint warehouse. Continue reading →

REUTERS | Jumana ElHeloueh
July 6, 2011

Guidance on jurisdiction for UK adjudicators

The Adjudication Society, in conjunction with the Chartered Institute of Arbitrators, has recently published guidance for adjudicators, Jurisdiction of the UK Construction Adjudicator.

I welcome the guidance note. It is an interesting and helpful document, which highlights that ensuring “an adjudicator has the jurisdiction to decide the dispute referred to him is of utmost importance to the adjudication process”. Given the number of reported decisions on jurisdiction over the years, I doubt many would disagree with this opening sentiment. While the intended purpose of the note is “…to provide practical guidance to adjudicators…”, it will undoubtedly also be of assistance to party representatives, both before, during and after adjudications. Continue reading →

REUTERS | Alex Domanski
July 5, 2011

Can the court correct mistakes adjudicators make?

In March 2011, Edwards-Stuart J gave a talk to the Scottish Building Contract Committee and the Society of Construction Law (SCL) in Edinburgh. The SCL has now published his paper for the benefit of all those unable to attend that meeting. The paper, When the adjudicator gets it horribly wrong, refers to the fact that adjudicators make mistakes and that sometimes, those mistakes are fundamental mistakes. It goes on to suggest possible solutions and makes interesting reading. Continue reading →

REUTERS | Russell Boyce
June 29, 2011

June 2011 digest: JCT contract changes and the rain

As Benjamin Disraeli said in 1867:

“Change is inevitable. In a progressive country change is constant.”

June has been a month of changes, not only with shifts in the weather (obviously, Wimbledon started, and everyone knows it nearly always rains during Wimbledon), but also with details of the changes to the industry’s main suite of standard forms of contract.

We may not have a confirmed effective date for the Construction Act 1996 amendments, but people are preparing gradually. The JCT has published tracked change documents, and we have written notes on the design and build, standard and intermediate contracts, telling you about the key differences between the JCT’s 2009 revisions and the 2011 editions. (CIMAR is changing too!) Schedules of amendments to these will follow and, in the meantime, we have updated all our maintained materials accordingly. Continue reading →

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