Last week, Akenhead J handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc. As he noted, it:
“…raises an interesting and important issue as to when in terms of limitation of action a party which is dissatisfied with the substance of an adjudicator’s decision needs to issue its proceedings or to raise any counterclaim in those proceedings to challenge and seek to overturn that decision.” Continue reading
Jackson LJ’s final report recommended that “there now needs to be a single authoritative handbook, explaining clearly and concisely what ADR is” and that “most judges and litigators would have the current edition of the proposed handbook on their bookshelves”.
The Jackson ADR Handbook was published in April 2013. It contains a foreword from Lord Dyson which says that the book is a direct result of Jackson LJ’s recommendation for such a handbook and that:
“It is properly authoritative. It is readily accessible. I cannot commend it more highly…”
The handbook really is essential reading for practitioners. It is also written in such a user-friendly way that it could be picked up by anyone who is involved in a dispute. Continue reading
I am always worried that failing to tick the correct box on a form could have dangerous consequences, but it is reassuring to see that the TCC does not view such an error as fatal, at least when it comes to revising an approved costs budget.
Since the introduction of the costs management pilot scheme in the TCC, construction practitioners have been waiting to see how the court would deal with a party’s application to revise its costs budget, where it had not complied strictly with the practice direction. We have already seen the Court of Appeal’s decision in Sylvia Henry v News Group Newspapers Ltd, which looked at approved budgets in the context of the defamation pilot. An opportunity for the TCC arose recently in Murray v Neil Dowlman Architecture Ltd. Continue reading
I wrote last time about Mid Essex Hospital Services v Compass Group (trading as Medirest). Others have commented about the case and how the Court Appeal interpreted the good faith clause. What has received less attention was the emphasis on punctuation and how that, and an imaginary caesura (see below), was the basis for the decision.
I recently attended a topping out ceremony organised by a developer client. At the ceremony, I was extremely interested to hear the developer attribute the early completion of this particular superstructure to the spirit of good faith in which the parties had worked. Having drafted the JCT-based building contract between the developer and the contractor, I knew that it did not contain an express obligation on the parties to act in good faith and that, traditionally, English law has been reluctant to imply such terms into contracts.
Mediation is a hot topic at the moment. One reason for this is because of Sir Alan Ward’s judgment in Wright v Michael Wright Supplies Ltd; another is the changes to the Civil Procedure Rules (CPR), which came into force at the beginning of April.
In January this year, I wrote about Compass Group (trading as Medirest) v Mid Essex Hospital where the High Court enforced a good faith clause and criticised a party’s conduct (involving a £84,450 chocolate mousse deduction). Having suggested that the courts are now more open to such arguments, the Court of Appeal reversed the decision in March, indicating the opposite.
So is that the end of the road for good faith clauses? Not quite, I suspect, both because of the specific clause used in Medirest and another High Court decision in Yam Seng PTE v International Trade Corporation. Continue reading
The uncertainty surrounding how to enforce dispute adjudication board (DAB) decisions that are binding but not yet final is a favourite topic for debate amongst FIDIC practitioners. However, it is more than simply an academic point. Arbitral tribunals are repeatedly grappling with it and are broadly divided, adding to the uncertainty. That FIDIC has recently (on 1 April 2013) taken the unusual step of publishing a Guidance Memorandum on this narrow issue underlines that it is a real concern for users of FIDIC contracts. This led me to ask whether this guidance moves matters forward?
Court of Session decides that to enforce adjudicator’s decision would be a breach of Human Rights.
Whyte and Mackay v Blyth & Blyth is the second decision in a long-running dispute over a whisky bottling facility. Readers may recall Lord Malcolm’s initial, somewhat surprising decision, which I blogged about last May. Continue reading
I recently advised on the question of whether a liquidated damages clause was a penalty. My attention was drawn to the recent case of Cavendish Square Holdings BV and another v El Makdessi. You may not have come across this judgment, as it is not a construction case, and does not concern liquidated damages. Rather, the question of whether a clause was a penalty arose in the context of a restraint of trade clause. Nevertheless, the court’s decision provides an important reminder to those negotiating liquidated damages clauses in construction contracts.
