All posts by busbyd

REUTERS | Kim Hong-Ji
March 1, 2011

Did the adjudicator ask himself the correct question?

As an adjudicator, asking yourself the correct question (even if you get the answer wrong) is one of the keys to issuing a decision that should be complied with and which the parties will be able to enforce in the TCC. Over the years, we’ve had several judgments on the point. They date back to Dyson J’s 1999 judgment in Bouygues v Dahl-Jensen, where he said:

“If [the adjudicator] has answered the right question in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity.” Continue reading →

REUTERS | Petar Kujundzic
February 28, 2011

February 2011 digest: Scottish Scheme, BSF judicial review and corporate manslaughter conviction

Henry Wadsworth Longfellow, Afternoon in February:

“The day is ending, the night is descending; the marsh is frozen, the river dead.

Through clouds like ashes, the red sun flashes, on village windows that glimmer red.”

February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some dry, most are cold, while others tantalise us with weak sunshine and a sign of spring to come. Continue reading →

REUTERS | Ahmad Masood
February 22, 2011

Should lawyers help parties in adjudication?

Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”.

Ann’s article suggests that in the run up to the Construction Act 1996 coming into force and during drafting of the Scheme for Construction Contracts 1998, there was “much discussion” about prohibiting parties from being legally represented in the adjudication process. I don’t really remember that. I wasn’t really involved in dispute resolution back then, I was still quantity-surveying full time. Continue reading →

REUTERS | Juan Carlos Ulate
February 21, 2011

Corporate manslaughter law after the conviction and sentencing of Cotswold

On 15 February 2011, Cotswold Geotechnical (Holdings) Ltd became the first company in the UK to be convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (2007 Act).

For practitioners in health and safety, the first corporate manslaughter prosecution was eagerly awaited. It was hoped that with it would come clarification of some of the controversial elements of this new offence. However, while the case has attracted much publicity, the conviction and sentence have left many still unclear how the new legislation will actually impact on individuals and companies facing prosecution under the 2007 Act. Continue reading →

REUTERS | Paulo Whitaker
February 16, 2011

Does seeing the Scottish Scheme mean we are a step closer to the Construction Act amendments?

Or should that be “Damp squib Part 2”? (For Part 1, see Matt’s April 2010 post.)

When BIS launched its consultation on the Scheme for Construction Contracts 1998, we were all hopeful that, once our answers to the consultation had been submitted, it would pave the way for the amendments to the Scheme and the Construction Act 1996 to come into force before the end of 2010. Unfortunately, that was not to be and the results of BIS’s consultation have still not been published. Continue reading →

REUTERS | Ronen Zvulun
February 9, 2011

Don’t be haunted by money laundering rules

Many years ago (longer than I care to admit) I went on my first foreign business trip. I had done a small piece of work for a UK subsidiary of a European company. I didn’t know them very well, but was pleasantly surprised when their holding company asked me to go to a meeting in their head office, to discuss a new matter. Their head office was not exactly in the Black Forest, but was pretty close.

Continue reading →

REUTERS | Kim Hong-Ji
February 8, 2011

No construction contract, no jurisdiction, no adjudication

Everyone knows that without a construction contract you can’t have a statutory adjudication. Everyone also knows that, absent a contractual adjudication agreement, if there isn’t a construction contract, the adjudicator doesn’t have jurisdiction and so, if he goes ahead and reaches a decision that one party refuses to honour, the court will not enforce it. Continue reading →

REUTERS | Yves Herman
February 7, 2011

Ask the team: the contractor has gone bust, do I need to pay his design consultants?

What happens if your design and build contractor goes bust, but hasn’t paid its professional consultants? In particular, what happens if those consultants then contact you to claim that you can’t use their designs and documents, because you don’t have a valid copyright licence to do so?

This situation may be particularly painful if, before the main contractor became insolvent, you had paid it in full (and it should have paid the consultants, as its sub-contractors). Continue reading →

REUTERS | Ilya Naymushin
January 31, 2011

January 2011 digest: concurrent liability in contract and tort, and economic loss

Robert Louis Stevenson, A Child’s Garden of Verses:

“In winter I get up at night and dress by candle-light. In summer, quite the other way – I have to go to bed by day.”

January nights are some of the longest of the year, its days some of the coldest. It’s a time of year when people look forward to the distant summer and warmer months. We’ve been doing the same, identifying the events to look out for in 2011. Of all of these events, the changes to the Construction Act 1996 may have the greatest impact on construction practitioners. The Bribery Act Act 2010 is also due to come into force this year. Corruption and bribery have already been in the news; it is unlikely to stop there.

Continue reading →

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