All posts by busbyd

REUTERS | Mike Blake
March 30, 2011

Civil litigation reform after Jackson; the government has its say

I am acting for a client who is thinking about bringing a claim under a CFA supported by ATE insurance. The company has never been involved in litigation before, except for small debt actions. Apart from trying to understand the litigation process, the whole system of recoverability of premiums and success fees is quite a lot to take on board, particularly with a risk that the other side could go bust, which means my client may end up paying for these, even if it wins.
Today the whole picture became more complex. (Luckily I had told my client a while back that the system of CFA and ATE was subject to political “interference”).  Continue reading →

REUTERS | Kim Hong-Ji
March 29, 2011

Ask the team: can I do without a retention?

Retentions seem to have been around since time immemorial. For their supporters, they are easy to administer and represent a sensible lever over contractors and sub-contractors, encouraging them to fix defects (or providing a fund to pay for the fix if they can’t or won’t remedy a defect themselves). However, the opponents of retentions are increasingly vocal. So, why might you do without a retention and what’s the easiest way to do so?

Continue reading →

REUTERS | Sukree Sukplang
March 21, 2011

Civil disturbance – do you have an exit strategy?

I have just returned from a visit to Dubai. The main issue of concern for my contractor clients is the civil upheaval in North Africa and parts of the MEA, which Edward Davies’ blog post also referred to recently.

I was asked for advice on a range of issues relating to contractual relationships, including whether the “employer” still exists, force majeure clauses (such as those Edward referred to), what might happen if you have no force majeure clause at all, insurance complications and the impact of the current crises on construction contract security (for example, letters of credit, bonds and guarantees). Continue reading →

REUTERS | Alexander Demianchuk
March 15, 2011

The “great” section 108A debate – part 2

In last week’s post, I outlined the views of the two camps in the “great section 108A debate”, namely:

  • The narrow interpretation camp, which considers that section 108A of the Construction Act 1996 (as amended) will banish Tolent clauses, but permit clauses allowing adjudicators to allocate their fees and expenses.
  • The wide interpretation camp, that argues that section 108A allows Tolent (and more onerous) clauses to survive.

So where do I stand on this? Continue reading →

REUTERS | Lee Jae-Won
March 9, 2011

Clarity in contract drafting: say what you mean

In Perriam v Wayne and Daly, the Technology and Construction Court (TCC) considered a deed of variation that “would win no drafting prizes for precision or clarity”. Not only did it transpose the names of various parties, it also “struggled to convey the essential agreement reached between the parties”.

In trying to work out what the parties had meant, the TCC decided it could and would consider “absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.” Continue reading →

REUTERS | Jumana El Heloueh
March 7, 2011

Working abroad: political uncertainty and country risk

There is extensive experience within the UK construction and engineering industries (and the advisers to those industries) of working in many different parts of the world. However, there is now a need (as opposed to a willingness) to work abroad because of the reduced workload in the UK. Less experienced companies will seek to work internationally, possibly for the first time. Some (including experienced players) might be willing to take on more risk than would be acceptable under normal market conditions in order to secure the revenue they need to keep the financial wolf from the door.

Continue reading →

REUTERS | Brian Snyder
March 1, 2011

Concurrent delay after De Beers v Atos

It’s been interesting to follow some of the debate in the legal press and online about whether there is a new line of authority developing in England and Wales about concurrent delay under a construction or engineering contract.

To simplify, concurrent delay refers to a period when two events have occurred, both of which delay the progress of the works under the contract, and:

  • one event is the contractor’s fault or responsibility under the contract; and
  • the other event is the employer’s fault or responsibility under the contract.

Continue reading →

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