When negotiating commercial contracts, parties are often preoccupied with what level of obligation to accept, whether this is “reasonable endeavours”, “best endeavours” or some other standard. Alternatively, they use such terms as some sort of compromise wording where they can’t quite agree or identify what is actually required.

Importantly, they often neglect to consider the object of these endeavours. What practical actions will the parties be expected to take to satisfy these obligations? If the object of the obligations is uncertain, then the agreement may not be enforceable at all, for example agreements to agree. At the other extreme, the obligation might be far more onerous than the parties intended at the time of drafting. Continue reading →

I was pleasantly surprised to see a few fellow lawyers at the RICS recently, for the launch of its New Rules of Measurement (NRM) and the accompanying QS & Construction Standards (the Black Book). I had thought this was classic “QS’ing for QSs” territory and that I was the only lawyer sad enough to be remotely interested. Maybe others were tempted by the (as it happens, rather good) free breakfast on offer. Or perhaps the prospect of another rallying call from the Chief Construction Adviser (Paul Morrell) was the big draw.

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I was looking back over the files from an old adjudication where I had represented the responding party. This case was interesting because it was one of those claims where the referring party’s lack of preparation reversed the usual (and true) maxim that adjudication favours the referring party.

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Although much has been written about the proposed reforms to the civil litigation system, in many ways we remain slightly in the dark about how the changes, once implemented, will work in practice. In terms of how IT will assist in this, until the thirteenth lecture in LJ Jackson’s series of lectures aimed at explaining the reforms and the thinking behind them, we had heard little.

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