The progress of a contractor’s works is often a key factor in a construction project completing on time. Construction contracts usually include terms that specify the progress required and the consequences if that progress is not achieved.
However, what is the position when the contract only gives the employer a right to terminate for the contractor’s failure to progress the works? Is the contractor obliged by an implied term to proceed regularly and diligently?
Benjamin Franklin once memorably wrote:
“In this world nothing can be said to be certain, except death and taxes.”
Litigation lawyers can be sure of one further thing: the issue of costs will be controversial. Continue reading
As Building Information Modelling (BIM) continues to become one of the hottest topics in the construction industry, the stark differences between the aspirations of government and the readiness of the industry to implement BIM become even more apparent.
Before the Christmas break, I took a look at ownership rights and BIM. This post now highlights some of the issues that arise when different members of a project team have reached different levels of readiness.
Do you know your Tolent clause from your Santa Claus? Then why not test your knowledge of construction law? Berwin Leighton Paisner’s Christmas quiz is back and as challenging as ever. Continue reading
Already frequently used in the USA and now compulsory on public projects in Denmark and Finland, Building Information Modelling (BIM) looks set to explode upon the UK domestic construction industry over the next few years. This development will be spearheaded by some major infrastructure projects and the government’s initiative to make it compulsory on public projects by 2016 (BIM Working Party Strategy Paper 2011).
This is the first in a series of articles, which deal with some of the legal issues that BIM presents.
I was surprised at the Court of Appeal’s recent decision in Daventry District Council v Daventry & District Housing Ltd. To me, this seems at odds with what I thought were the well-established rules of contract interpretation and rectification.
These are tough times for the construction industry. The OECD has just announced that the UK is heading back into recession. Big deal – the construction industry has never got out of one that started in 2008 when Lehman Brothers fell over. The Chancellor’s announcement of an extra £30billion for infrastructure is obviously welcome, but it will take some time to materialise – and only then if he can convince the pension funds to stump up the cash.
A Technology and Construction Court (TCC) working party is undertaking a review of the Pre-Action Protocol for Construction and Engineering disputes. I understand that there is support from some quarters for its abolition.
I would like to add my voice to Catherine Gelder’s blog: to stand up for the Protocol and record my support for it. I urge others to do the same.
The Protocol, in my view, performs a useful function and it would be a retrograde step to see it go. No doubt, its working could be improved. Learning from our experience so far, I think the Protocol should be amended, not abolished. Continue reading
If you have agreed in your construction contract that any dispute will be referred to arbitration, rather than the courts, the arbitrator’s decision has to be seriously wrong before the court will “interfere” and give leave to appeal the award. Despite this, cases involving appeals from an arbitrator’s award on a point of law under section 69 of the Arbitration Act 1996 seem to be flavour of the month.
In HMV v Propinvest (not yet reported), the Court of Appeal considered the question of appeals under s.69(3)(c)(i), which provides that leave to appeal on a point of law shall be given only if the court is satisfied that, on the basis of the findings of fact in the award, the decision of the tribunal on the question of law is obviously wrong. Continue reading
Keen readers of this column will recall my bafflement at the Court of Appeal’s decision in Rainy Sky SA v Kookmin Bank. An (as it seemed) routine call on an advance payment bond was denied on the basis of one word – “such“. The word had been carelessly inserted into a clause of the bond, presumably with little thought on either side as to its meaning and effect. Adopting the restrained and temperate language that is my hallmark on such occasions, I described it as “ludicrous” and defying business common sense. I even evoked the most damming insult of all – “with respect”. I concluded by wondering if the Supreme Court would be allowed the last word on the subject.
