Francis Bacon, Of Great Place:
“Set it down to thyself, as well to create good precedents as to follow them.”
The second half of 2013 has seen a number of important decisions affecting construction and engineering practitioners. Continue reading
REUTERS | Kim Hong-Ji
December 18, 2013
July to December 2013, a half year case review
REUTERS | Tobias Schwarz
December 17, 2013
CIOB’s Contract for use with Complex Projects: take the plunge!
There was considerable press comment earlier in the year on the appearance of the Chartered Institute of Building’s (CIOB) Contract for use with Complex Projects (CPC 2013). The promoters hailed it as an important step in improving the approach to time management. However, some commentators wondered if it was too complex for everyday use. No doubt more feedback will be forthcoming once it has been adopted on site for suitable projects.
REUTERS | Jason Lee
December 11, 2013
Is cost management by the courts working?
Cost management in the courts has been around now for some time. In the TCC, we have had extended pilots dating back to 2010 and, since April 2013, the new provisions courtesy of section II of CPR Part 3 and PD 3E have been in place.
With this backdrop, I am often being asked whether I think cost management is working. Continue reading
REUTERS | Herwig Prammer
December 10, 2013
E-mail arrangements over Christmas and the new year
“I’m dreaming of a white Christmas
Just like the ones I used to know
Where the treetops glisten
and children listen
To hear sleigh bells in the snow.”
Following business as usual this week, Practical Law Construction will send its last e-mail of 2013 next week, to arrive in your inbox on Thursday 19 December 2013. We are then taking a break until the new year. The first e-mail of 2014 will be sent to arrive in your inbox on Friday 3 January 2014. This e-mail will include reports of all developments since 19 December 2013.
Merry Christmas and a happy new year.
REUTERS | Luke MacGregor
December 10, 2013
Solicitor’s undertaking to ensure payment of adjudicator’s fees
I thought two interesting points were made right at the end of the judgment in JG Walker v Priory Homes. Firstly about whether it was appropriate to order indemnity costs of the enforcement application and, secondly, the solicitor’s undertaking to pay the adjudicator’s fees.
REUTERS | Brian Snyder
In April this year I looked at the “new test” (set out in Cavendish Square Holdings BV and another v El Makdessi) for determining whether or not a contractual provision is a penalty. Last week, the Court of Appeal overturned the decision at first instance, and struck out the relevant clauses as penalties. In doing so, the court went some way towards clarifying the law on penalties. Although the Cavendish case is not a construction case this decision is relevant to everyone negotiating liquidated damages clauses in construction contracts.
REUTERS | Paulo Whitaker
December 4, 2013
Court of Appeal finds implied term in construction contract
The Court of Appeal handed down its judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc on 29 November 2013. The judgment determines by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment.
REUTERS | Alexander Demianchuk
Christmas is approaching and for many of us that means it’s the time when board games are dusted off and some serious competition begins. I confess that I’m more a Trivial Pursuits than Taboo man, mainly because I’m normally hopeless at guessing what other people are trying to describe, and when it’s my turn I always end up saying one of the outlawed words. That said, I don’t mind a bit of Monopoly, provided I don’t end up with Old Kent Road (no disrespect to those of you south of the river). You can buy train stations, a water works, park for free and even go to jail – and then get out again using your “Get out of jail free” card.
Having read Akenhead J’s judgment in Westshield v Whitehouse, responding parties might now have their own “Get out of jail free” card when trying to resist enforcement of an adjudicator’s decision when the referring party is in a CVA. Continue reading
REUTERS | Jumana El Heloueh
November 30, 2013
November 2013 digest: adjudication, insolvency and “plebgate”
John Clare, Autumn:
“The summer-flower has run to seed, and yellow is the woodland bough;
And every leaf of bush and weed is tipt with autumn’s pencil now.”
Weather-wise, November has seemed milder and calmer than normal. We may have had a bit of wet and windy weather at the start of the month, with some cold days and a scattering of snow to higher ground more recently, but winter certainly hasn’t got us in her grip yet. If there is a storm coming, it hasn’t arrived.
However, a storm is certainly brewing in the cauldron of civil litigation. Continue reading
REUTERS | Navesh Chitrakar
November 27, 2013
Can a third party use adjudication?
The TCC’s decision in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd surprised many construction lawyers in concluding that collateral warranties can be construction contracts for the purposes of the Construction Act 1996. The court held that Parkwood Leisure (the beneficiary of a collateral warranty from Laing O’Rourke) could commence an adjudication against Laing O’Rourke in respect of alleged defects in their works.
The decision has been the subject of much comment and criticism from many quarters, one leading lawyer labelling it as “simply wrong”.
But what about third party rights granted to beneficiaries pursuant to the Contracts (Rights of Third Parties) Act 1999? Can they bring adjudication proceedings in the event of a dispute in respect of the rights granted to them? Continue reading
