I am always nervous when contracts that I had a hand in drafting end up in the High Court. Thankfully it hasn’t happened too often, but when it does there is an inevitable frisson as I wonder what the judge will make of it. Will he agree that my drafting means what I intended it to say? Will he give it an entirely different interpretation? Or – worst of all – will he (to quote Salmon LJ) condemn it as a “farrago of obscurities”?
Have you ever been involved in negotiating a contract term that seemed eminently sensible, only to find that its application was rather more complex than initially supposed? Sometimes I feel that Parliamentary draftsmen must feel the same way, trying to draft legislation of general application against a backdrop of a huge existing body of law and varying commercial practices.
The amendments to the Late Payment of Commercial Debts (Interest) Act 1998, which are coming into force on 16 March 2013 under the Late Payment of Commercial Debt Regulations 2013, are a case in point. Continue reading
I had the pleasure of sitting with Akenhead J on 22 February 2013 as part of the marshalling scheme run by the TCC, a scheme which I would thoroughly recommend.
The court heard the next round in the long-running dispute of Berry Piling Systems Limited v Sheer Projects Limited. This dispute has been through the process of adjudication, arbitration, and enforcement proceedings in the TCC, culminating in an application for committal for contempt against two of Berry’s directors.
My last blog on cost management was, I now appreciate, rather boldly titled “Cost management by the courts is here to stay”. I was writing in the context of the TCC but my thoughts were soon endorsed when the judiciary announced that the cost management regime would be applied to all multi-track cases in all courts save for the Commercial Court.
With the increased use of “cost reimbursable” or “cost plus” contracts such as the IChemE Green Book and NEC3 option E, now is a good time to consider the employer’s right of audit in more detail.
Ever since the House of Lords handed down their now seminal judgment in SAAMCo, in almost any case involving allegations of professional negligence where it could be said that the damages claimed resulted from a fall in the market, defence lawyers up and down the land have pointed to SAAMCo and written a lengthy letter to the claimant’s legal team explaining why the losses claimed were too remote. However, following the Court of Appeal’s judgment in John Grimes v Gubbins, the claimant’s solicitors now have ammunition to write a lengthy letter in reply.
In so far as there can be trends among construction lawyers, it is, “trendy” to question whether delay is an area of “expertise”. Whether or not you use the evocative term “expert” or stick to my preferred, “analyst”, it is interesting to explore why the area of delay evidence is contentious and engenders so much frustration for those involved in construction disputes. My view is that this due to a mismatch of expectations in what is being offered.
One of the new opportunities that Building Information Modelling (BIM) offers the construction industry is taking on the role of “BIM information manager”. As part of their institutional BIM protocol drafting, a number of professional bodies (including, we understand, the Construction Industry Council, whose protocol is expected soon) have begun to develop the role.
In-house BIM teams in major contractors are also developing protocols and, as part of that process, have been fleshing out standard job descriptions for the BIM information manager.
But what is that role and why is it central to the effective implementation of BIM?
Continue reading
Our previous blog post considered whether JCT bonds were on-demand instruments or guarantees. The issue of bonds and guarantees came up again recently in a slightly different context. Our client asked us to advise on its demand for payment under a “performance bond“. The client explained that the performance bond was an on-demand instrument and that it had followed the requirements of the bond exactly in making its demand. This seemed to be relatively straightforward, so what was the problem?
I’ve got a multiple choice question for you: is a Project Bank Account (PBA)?
A. a simple mechanical process which allows for fast and secure payments to be made to the supply chain, cutting out slow payers;
B. a complicated pain in the proverbial which achieves no real benefit for anyone; or
C. a small animal living under my staircase (well, there is always one multiple choice answer you can rule out).
Whatever you think, PBAs, love them or loath them, are here and they are here to stay. Great if you answered “A”, but less so if you answered “B” or “C”.
