There has been a lot of hype in the past year about predictive coding. Lawyers have prided themselves on being fantastically “in the moment” when proposing this advanced technology to clients, in the context of large disclosure exercises, with the promise that it will save time and money. Indeed, using this latest technology has become an effective way for law firms to set themselves apart from their competitors. However, clearly clients should not use it simply because it is the latest trend. It is critical that we, as legal advisers, and our clients understand how it works and when its use is appropriate, so that we can make an informed decision.


Mediation and costs management – part 2
In April 2013, I wrote about mediation and costs management, which were hot topics as a result of the new Civil Procedure Rules. Since that blog, there have been three cases of particular interest in relation to mediation and costs management. Continue reading

BIM roundtable: a view from industry
I was recently involved in hosting a roundtable event attended by representatives from across the construction industry. The event focused on the impact Building Information Modelling (BIM) has had on the UK construction industry to date. We discussed the processes, technology and collaborative behaviour required to successfully implement BIM more widely, and the challenges faced in meeting the government’s mandate for all public sector centrally procured construction projects to be delivered using BIM by 2016.
Some interesting themes emerged: Continue reading

I was recently negotiating a procurement contract that brought to mind recent cases concerning good faith obligations. It occurred to me that if there is a move towards including express good faith obligations in construction contracts, should we not also consider addressing the consequences of acting in bad faith?

Advantages of mediation in neighbour disputes
Last time, I looked at recent developments in mediation, including in light of the new Civil Procedure Rules. This time, I’m looking at the mediation of neighbour disputes.
Neighbour disputes often have two common features: hostility and (if the dispute goes as far as trial) the potential for huge legal costs to be run up. However, in my experience there is another way: mediation.
If I was asked how to persuade one neighbour to suggest mediation to the other, I’d say the answer lies in explaining the potential financial and non-financial benefits of taking any neighbour dispute to mediation. Continue reading

Making head office overhead and profit claims
This post looks at the practical steps in making head office overhead and profit claims, referring to Akenhead J’s blockbuster decision in Walter Lilly v Mackay. Most will know that the court rejected the Scottish (apportionment) approach to concurrent delay and, no doubt, almost all will know of Mr Mackay’s uncompromising approach to his contractor and professional team. However, this article is about neither of those aspects…
…in addition, the case gives useful guidance on what is needed to prove head office overhead and profit claims, which (in short) seems to amount to a lever arch folder, a weekly meeting and a willingness to file. The court also appears to have relaxed the test of “ascertainment” in loss and expense claims.

Parties too often under-estimate the value of having their case on quantum in order in the lead up to a hearing. In the context of complex high value construction disputes much has been written about the role of experts and ensuring that their evidence is properly presented to the court. The court’s gaze is increasingly turning to liability experts, particularly in the context of delay analysis.
Does this mean that the need to get the figures right and the claim substantiated is just too obvious that we don’t need reminding? After all in the vast majority of the cases we are involved with, the parties are fighting over how much money is owed to whom or the “real” cost of remedying defective work, and they can’t do that without properly presenting their case on quantum, can they? Continue reading

Collaboration and alliancing: changing times
The times they are a-changin’…
It was almost 20 years ago that Sir Michael Latham called on the construction industry to change its ways and embrace collaborative working (Constructing the Team, 1994). We know these things take time but are we now finally facing the dawning of the age of Latham?
It is clear that new contracts are being used and the flood of recent cases on good faith and cooperation obligations reflect that change, with TSG v South Anglia being the latest example.
The increasing use of alliancing will also mean the courts have to look at new types of obligations and contractual arrangements. When the courts do that, they should recognise the background to this change. Maybe not quite what Bob Dylan was thinking of in 1964 but perhaps just as radical (at least for us construction people). Continue reading

The extent to which a party may be obliged to sacrifice its own commercial interests in complying with an “endeavours” obligation in a commercial contract is an issue to which there is no easy answer. A different but related issue was considered in two recent cases: whether a party who is in financial difficulty can rely on an “endeavours” provision to avoid other contractual obligations.

A first under the Building Act 1984
Hastings pier opened in 1872, enjoyed its prime in the 1930s and was a popular music venue in the 1960s, with many notable bands (including the Who and the Rolling Stones) playing there.
Like so many Victorian piers, since then, the pier was not kept in good repair (it also suffered major storm damage). Consequently, in June 2006 Hastings Borough Council exercised “emergency” powers under section 78 of the Building Act 1984 (BA 1984) to close the pier to the public. The local authority was concerned about its structural integrity. However, by closing the pier to public access, it closed the tenant’s bingo hall and amusement arcade.
There followed a claim (by way of an assignment) by the tenant for statutory compensation under section 106 of the BA 1984 and the matter came before Ramsey J, who delivered judgment earlier this year. Continue reading