This post is yet another in my (not so) occasional series about expert evidence and expert witnesses. It could be called, “Is it time for some experts to throw in the towel?”

Last time I looked at experts, I said that Leggatt J’s judgment in Hirtenstein v Hill Dickinson was one to read if ever you wanted to see how not to be an expert witness. A similar thing could be said about Weatherford Global Products v Hydropath Holdings Ltd and others, where Akenhead J doesn’t pull any punches. Continue reading →

Summer is swiftly drawing to a close, but while many of us have been on our holidays, the construction industry appears to have been running at full-bore throughout the summer. Although there was a minor stagnation in July, there is still a significantly greater volume of work than compared to five years ago, and labour shortages are clearly a problem. For example, I was speaking to a sub-contractor recently who is struggling to get labour and has seen his labour rates increase by over 15% in the last year, and yet he is still winning work.

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Regular users of the NEC3 ECC will be familiar with its dispute resolution provisions set out in Options W1 and W2, used depending on whether the contract is a “construction contract” and the Construction Act 1996 applies (W2), or it isn’t and it doesn’t (W1). Both Options provide for disputes to be referred to adjudication and include similar prescriptive time limits for when things have to be done by. They also both provide for the giving of a notice of dissatisfaction in the event that one party is unhappy with the adjudicator’s decision.

Since none of this is new stuff, I was rather surprised to see the arguments advanced in Fermanagh District Council v Gibson (Banbridge) Ltd, which reached the Court of Appeal in Northern Ireland. Continue reading →

Outside of renovating a kitchen, in construction circles we usually talk about kitchen sinks in the context of a claim where one of the parties has thrown everything in to it, the proverbial kitchen sink claim. In my experience, kitchen sink claims often crop up in adjudication, featuring in the law reports when the adjudicator’s decision is being enforced and one of the parties suggests the adjudicator breached the rules of natural justice in some way by dealing with it.

I therefore had a wry smile when I saw Leggatt J in the Commercial Court recently refer to a claim that included a “vast array of fittings and accoutrements” which were “palpably unjustifiable”, including the kitchen sink. It was one of the many items that had been included on a spreadsheet of repair costs prepared by the claimant’s engineering expert. I have Michael Mendelblat to thank for drawing my attention to this one. Continue reading →

This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of tribunal, the CJC’s guidance applies to an expert of any discipline who is instructed to act in court proceedings. It reflects the April 2013 Jackson reforms and replaces the previous version, which is currently annexed to PD35. Continue reading →

What happens when one party refuses to pay the adjudicator and challenges the reasonableness of his fees?

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When I read Lord Malcolm’s judgment in Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd, I was reminded of the TV game show, Supermarket Sweep. For those unfamiliar with Supermarket Sweep, as far as I can remember (with a little help from Wikipedia) the premise was that contestants played games to accumulate time, which they then used to fill their shopping trolley with goods by running around a supermarket. The one with the most valuable trolley at the end won the prize.

When you read Lord Malcolm’s judgment in Bouygues v Vital, you will see why I drew the supermarket trolley analogy. Continue reading →