Over the last year or so, much has been written about the impact of the costs management and costs budgeting aspects of the Jackson reforms on High Court litigation. It doesn’t stop at written articles either. Whenever I go to a construction function these days, it seems to be the one topic that everyone is talking about. Everyone seems to have a “war story” about some aspect of costs management or the impact that the Mitchell decision has had on the conduct of litigation. It is often said that these reforms will push parties away from the courts and into the arms of arbitrators. I do not know if that is true or whether, once everyone gets the hang of the new(ish) rules, things will bed down and it will be business as usual at the TCC. Last year, Jonathan considered some aspects of costs in arbitration, but I wonder if adjudication could be the answer for those with concerns about the courts.

Continue reading →

Let me start with an apology. I appreciate that this is the second time I’ve blogged about this rather dry subject this year. However, after April’s blog on the subject (Privilege and adjudication revisited), a friend of mine pointed out a twist which may mean that non-solicitor firms offering claims consultancy services can rely on legal advice privilege after all.

Let me explain. Continue reading →

Over recent weeks, both Jonathan Cope and David Robertson have written about Akenhead J’s judgment in Obrascon v AG of Gibraltar. While they both looked at the condition precedent issues related to clause 20.1 of the FIDIC Conditions of Contract (in that case, the Yellow Book), Jonathan also considered the judgment’s potential impact on other standard form contracts (such as JCT and NEC3) and David highlighted some drafting points for both contractors and owners.

What neither considered (presumably because it did not arise in Obrascon, at least not in the judgment), is the possible impact that arguments related to waiver and estoppel may have on a condition precedent clause to rebut its finality. Continue reading →

In the last 15 months I’ve posted a blog about expert evidence on five occasions (I know, I’ve counted them). The overwhelming message from all of these posts is that the experts parties appoint could do better, either in the quality of their expert testimony, not being partisan or biased and in having the appropriate expertise for the dispute.

It was therefore interesting to read Akenhead J’s views on experts in his article for the Academy of Experts journal, The Expert and Dispute Resolver, earlier this year. Continue reading →