Arbitration users’ perceptions of the speed of the arbitral process have been a bit of a roller-coaster. Initially arbitration was trumpeted as being speedier than litigation, but users have increasingly expressed frustration at the delays experienced in obtaining an arbitrator’s award. Earlier this year, Berwin Leighton Paisner (BLP) surveyed arbitration users regarding delay in the arbitral process, and if its findings are not shocking, they are certainly worthy of a raised eyebrow.
The first part of this post explored the increased number of unavailability deductions being levied on PFI and PPP projects. I explained the contractual provisions that must ordinarily be satisfied before an employer can establish any entitlement to levy unavailability deductions.
Here, I set out various means by which a party could attempt to defend such a claim.
In Ampurius v Telford Homes, the High Court looked at two relatively common phrases in construction contracts, “reasonable endeavours” and a promise to carry out works “with due diligence”. It is important that parties concluding contracts and their advisers are aware of the interpretation that the High Court has placed on these phrases as, although every contract will be interpreted individually, there is a chance that these interpretations will be relied upon and followed in subsequent cases.
The more cynical amongst us may think that the growing frequency of unavailability deductions on PFI/PPP projects is a sure sign that employers are going the extra mile to claw back the cost of PPP or PFI projects.
However, in their eagerness to recoup some costs, employers, sponsors or authorities can (and often do) ignore the contractual provisions that must be satisfied before establishing any entitlement to levy unavailability deductions.
I had a call from a client (I’ll call him “Mr D”) not so long ago. Mr D was developing a scheme behind an existing façade, which the lovers of early 20th-century architecture at planning control had insisted needed to be retained.
Mr D’s contractor therefore had to construct various brackets and supports during excavation in order to prevent the collapse of the existing façade while he built the permanent structures. Due to the delicate nature of this task and the fact that Mr D’s site was surrounded by some potentially litigious neighbours, Mr D was keen to ensure that his structural engineer acted as a second pair of eyes looking over the contractor’s temporary works and their design. Continue reading
Berent v Family Mosaic Housing & London Borough of Islington has clarified a property owner’s liability for property damage caused by their trees. The decision will be welcomed by local authorities, tree owners and their insurers, and includes wider guidance for property damage cases.
It seemed as if everything was up for discussion at the TeCSA and TECBAR symposium which BLP hosted last Monday evening. The ever impressive line up of speakers included Ramsey J and Akenhead J, to present talks on the theme of the interventionist judge and better case management.
The slight irony of the evening seemed to be that, as Akenhead J suggested during his address, good case management is often viewed as being when the judge does not have to intervene to any great extent. An interventionist approach would only be called for when the parties themselves could not agree the way forward on case management. Continue reading
In Merit Process Engineering v Balfour Beatty Engineering Services, Edwards-Stuart J considered Balfour Beatty’s application to stay TCC proceedings. Balfour Beatty relied on CPR Part 62.3(2) and section 9 of the Arbitration Act 1996, and argued the parties’ contract incorporated an arbitration clause.
The case underlines the importance of ensuring that the necessary terms of an intended contract, in particular the price, are agreed between parties in order for a contract to be concluded. Continue reading
In Kazeminy v Siddiqi, a “full and final settlement” wasn’t so final. It’s a valuable reminder of the first rule of settlement.
This summer marks the first anniversary of the coming into force of the Bribery Act 2010 in the UK. Many contractors and others within the construction and infrastructure sectors have reviewed their compliance systems since the introduction of the Bribery Act.
With the emphasis in the Government Guidance on taking a risk-based approach, how might organisations use anti-corruption clauses effectively in their contracts with their supply chain and sub-contractors? What level of protection is provided by such clauses? Where are the potential pitfalls?
