The Wimbledon v Vago principles to be applied on an application for a stay of execution of an adjudicator’s decision are familiar to all. Indeed, most practitioners would consider there was nothing left to be worked out by the courts.
However, in his decision in Pioneer Cladding Ltd v Graham Construction Ltd, Coulson J had to consider a “novel” point. Continue reading
An aggrieved tenderer will always want to find out as much as possible about what happened during a procurement process in order to fully understand why its bid failed. For most procurements (other than those either under threshold or for Part B services), the Public Contracts Regulations 2006 (SI 2006/5) (and as amended) (Regulations) contain their own mechanism (under regulation 32) for the communication of relevant comparative information to the tenderer about its bid and that of the winner, to enable it to gain that understanding.
However, it is also the case that the level of information that the contracting authority is willing to provide at that stage can be extremely varied. Sometimes it will provide the barest possible information, leading to the inevitable challenge that regulation 32 has not been complied with, and the standstill period has therefore not been engaged. On other occasions, significant information will be supplied, which may in turn open up avenues of enquiry for the losing tenderer to ask extra questions, or to request further information or documents. Continue reading
Berwin Leighton Paisner’s (BLP) third annual arbitration survey indicates that most arbitration users feel that document production adds significant delay and cost to the process, yet rarely contributes much to the outcome of the arbitration. It also indicates that tribunals and parties are struggling to get to grips with e-disclosure, and that tribunals are often not up to speed on the issues when hearing document production applications.
In light of this, should we simply do away with document disclosure and accept that it may, in certain circumstances, be possible and indeed appropriate to get to the right answer without this extensive trawl through the documents? After all, the adjudication of construction disputes typically operates on this basis and more often than not results in an outcome that the parties choose to live with as the final determination. Continue reading
It is commonly thought that homeowners are not liable for damage caused by the roots of trees on their property, because they lack the necessary degree of foresight. However this is no longer correct. In a decision of some significance, Ramsey J in Khan and Khan v Harrow Council and Sheila Kane has held that homeowners can be liable to neighbours for damage caused by tree root encroachment, even if they were personally not aware of the risk of damage.
I recently had the fortune of sitting on the TeCSA marshalling scheme, which allows junior lawyers specialising in technology, engineering or construction the opportunity to shadow TCC judges for one week. This gave me the unique opportunity to witness hearings from an entirely neutral perspective, without the normal influence of one’s own involvement in either side of the case.
We all know the usual list of do’s and don’ts for a successful hearing but, from an elevated (the marshal sits next to the judge on the bench), all seeing, all hearing perspective, it becomes even more compelling as to why strategic and rigorous case and hearing management is important. Continue reading
After nearly 30 years in the construction law game, I should no longer be surprised when an unexpected decision comes along. But Akenhead J’s judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd made me sit up and draw breath.
Last week’s Practical Law legal update notes that the decision will be a “surprise to most practitioners”. With great respect to the learned judge, I would go further and say that it is simply wrong. It is also likely to have highly undesirable ramifications for the negotiation of collateral warranties in future. Continue reading
Two recent High Court decisions (AB and another v CD Ltd and Newbury v Sun Microsystems) illustrate the importance of knowing early each and every settlement term either desired by your client or necessary to make the settlement work. Continue reading
In Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd, Akenhead J was asked to determine whether a collateral warranty was a “construction contract” for the purposes of Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) and therefore subject to statutory adjudication.
The collateral warranty did not refer to adjudication but the tenant beneficiary (Parkwood) alleged that the warranty’s wording made it a construction contract that entitled Parkwood to bring a defects claims direct against the contractor in adjudication. Continue reading
The Court of Appeal has recently been grappling with the issue of guarantees again. In CIMC Raffles Offshore (Singapore) Ltd and another v Schahin Holding SA it considered the extent to which an anti-discharge provision may operate to exclude the purview doctrine in the context of guarantees.
The adjudication enforcement in Thameside Construction Company Ltd v Stevens raised, as Akenhead J noted:
“…the sometimes vexed question of whether and when a party against whom an adjudicator has decided may seek to set off against the sum said by the adjudicator to be due and avoid or defer payment.” Continue reading
