All posts by James

REUTERS | Jason Lee
March 25, 2009

Adjudication provisions: a recipe for confusion?

What happens if your construction contract contains adjudication provisions that do not comply with the Construction Act 1996 (Act)? “That’s easy”, you say, “the Scheme for Construction Contracts 1998 (Scheme) applies because section 108(5) of the Act says that if the contract does not comply with section 108(1) to (4), the adjudication provisions of the Scheme apply.”

Here comes the tricky question: does the Scheme substitute the contractual adjudication provisions in whole or only in part? Continue reading →

REUTERS | Toby Melville
February 25, 2009

Can’t pay, won’t pay (yet)

I recently gave a lecture to a group of construction industry professionals on legal developments in 2008. The case that caused most debate was Alan Auld Associates Ltd v Rick Pollard Associates and another [2008] EWCA Civ 655.

Termination for repeated non-payment

That case concerned a consultant (Dr Pollard) working for a contractor, who in turn was charging their client for Dr Pollard’s services. The case is about whether you can determine a contract for continual late payment (as opposed to non-payment), even in the absence of an express power to do so. Continue reading →

REUTERS | Navesh Chitrakar
February 2, 2009

Pre-action problems likely to persist

In a previous blog post we raised some of the practical problems that arise when trying to comply with the Pre-Action Protocol for Construction and Engineering disputes (the “Protocol”) in large multi party actions.

It would have been overly optimistic therefore to think the impending new Practice Direction on Pre-Action Conduct (the new Practice Direction) may address some of these concerns. Continue reading →

REUTERS | Jason Lee
January 28, 2009

Collateral damage

New builds for sale?

I think that it is inevitable that a number of relatively new buildings will have to be disposed of by the present or intended occupants. Those buildings will end up in the hands of a bunch of new people ranging from purchasers or occupiers (who have acquired them at a knock-down price) to insolvency practitioners, on behalf of insolvent companies (who would probably rather not have them at all but can’t sell them).

Defects

In some of those cases the recipients may be less than delighted with the build quality and may well end up dusting off any available collateral warranties. Continue reading →

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