All posts by James

REUTERS | Jason Lee
January 16, 2013

JCT bonds: on demand instruments or guarantees?

Allow me to set the scene. Our client, Q, is procuring a major office development in the City of London. Q tells me that, in order to secure the most competitive tenders for the project, he has decided to give the contractor advance payments and payments for off-site goods and materials. Fairly standard practice, particularly in this market. Q goes on to explain that these payments will be bonded using the JCT standard forms of advance payment and off-site goods and materials bond (the “JCT bonds”) because they are on demand and as good as money in the bank, aren’t they?

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REUTERS | Arnd Wiegmann
January 8, 2013

Contracting to use good faith

In 1992, the House of Lords said that a contractual obligation to exercise good faith was “…inherently repugnant to the adversarial position of the parties when involved in negotiations… [which] is unworkable in practice…” (Walford v Miles 1992 AC 128). It refused to imply such an obligation during pre-contract negotiations. 20 years later, has anything changed?

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REUTERS | Alexander Demianchuk
January 2, 2013

Designers’ liability and their duty to warn

In Cleightonhills v Bembridge Marine Ltd and others, Akenhead J held that a designer could not recover from those involved in a construction project down the line. On the facts, the third parties had not breached their duty of care in tort. The decision also includes some interesting discussions on obiter points, including whether there is a tortious duty to warn a third party of a dangerous design.

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REUTERS | Ina Fassbender
December 5, 2012

Keeping the lights on?

While most of us were caught up in the wall-to-wall coverage of the Leveson report last Thursday, other significant announcements were being made in Westminster.

The Energy Secretary, Ed Davey, made a statement on the publication of the Energy Bill 2012, which is the product of months of industry-wide dialogue and debate on how we can keep the lights on while ensuring a low-carbon economy. Continue reading →

REUTERS | Amit Dave
November 28, 2012

Compromise agreement should be clear and comprehensive

In Jacobs UK Ltd v Skidmore Owings & Merrill LLP, Coulson J was asked to consider the meaning of an agreement that had been reached between Jacobs and SOM compromising their previous round of litigation.

The case is a salutary warning of the need to ensure that the terms of any such agreement are clear and comprehensive, lest another round of litigation should follow. Continue reading →

REUTERS | Mike Blake
November 20, 2012

“Shaken and stirred” when a criminal prosecution follows an earthquake

The tragic earthquake in L’Aquila, Italy, followed a number of minor tremors and not only shook the population of the historic town, killing 308 people and leaving tens of thousands homeless, but also sent shock waves through the scientific and engineering communities both in Italy and worldwide, stirring much indignation among them.

Why? Four seismologists, two engineers (members of the Italian National Commission for the Forecast and Prevention of Major Risks) and a public official have been convicted of manslaughter (culpable homicide) and sentenced to six years in jail for failing to properly assess and communicate the risk of the earthquake. It’s said they painted an overly optimistic picture that reassured the local population leading them to return home and remain in their houses. Continue reading →

REUTERS | Mike Blake
November 12, 2012

Complete performance, substantial performance and adjudication

Is sub-contracting in Stevenage more dangerous than sailing the North Atlantic? And what have sub-contracting in Stevenage in 2007 and sailing in the North Atlantic in 1795 got in common with an adjudicator’s decision in 2012?

Regrettably, for the adventurers among you, this blog doesn’t attempt some kind of statistical comparison of the physical risks of the sub-contract and the transatlantic crossing. Perhaps more prosaically, it draws out some legal lessons from the hazards of contracting to complete both these activities. The dangers aren’t limited to sailors and contractors though: the Court of Appeal decision in PC Harrington v Systech ensures the perils apply to the adjudicator caught in the same conundrum. Continue reading →

REUTERS | Ronen Zvulun
November 6, 2012

The hidden cost of public procurement

Do we need to think a little more carefully about what the public procurement rules cost to implement? Few people could disagree with the government’s stated procurement policy to:

“… buy the goods, works and services that it needs under a fair and open procurement process, guarding against corruption and seeking to secure value for public funds with due regard to propriety and regularity.”

However, for some time there have been mutterings about whether the rules themselves have contributed to the increased cost of public procurement. Commentators have noted that the cost of publically funded projects has risen well above inflation. And then there are the other costs. Continue reading →

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