All posts by James

REUTERS | Alex Domanski
April 9, 2014

Net contribution: a problem shared?

I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old.

For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment was not “unreasonable” for the purposes of the Unfair Contract Terms Act 1977. That led to a flurry of claims from consultants (and their representative bodies) that NCCs were “fair” and “judicially endorsed”. Of course, the case decided nothing of the sort; merely that the NCC in question was not so unreasonable as to fall foul of UCTA. Continue reading →

REUTERS | Tobias Schwarz
April 8, 2014

An appeal or just reinforcing the adjudicator’s decision?

I read the Court of Appeal of Northern Ireland’s decision in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd recently. The appeal was brought by the Housing Executive, who thought the High Court judge was wrong in law to uphold an adjudicator’s decision (which found in favour of Healthy Buildings). The Court of Appeal did not agree with the Housing Executive and upheld the first instance decision, which, in turn, meant the court supported the adjudicator’s findings.

Continue reading →

REUTERS | Aly Song
April 7, 2014

Time to sort out limitation in economic loss cases

Alternatively, this post could be called, A critique of Co-Op Group Ltd v Birse Developments Ltd, given this case raises a fundamental question in relation to the law of limitation in professional negligence claims involving engineers and other construction professionals.

In cases of pure economic loss, what should we take as the relevant date for limitation purposes? Is it the date when the building was completed or is it the date when physical damage was suffered? Continue reading →

REUTERS | David Mdzinarishvili
April 1, 2014

The composting case that’s proved to be fertile ground for disputes, but could this latest one have been avoided?

Some projects seem destined to generate disputes and a composting facility commissioned by Devon County Council seems to be one of them.

As far as I can tell, to date there have been nine adjudications, two hearings in the TCC and one arbitration between the Council and Celtic (the contractor), who, confusingly, is called Bioenergy Ltd in one judgment and Composting Systems Ltd in another. Previously, there were at least two adjudications between Celtic and ROK Building Ltd (its sub-contractor), together with enforcement hearings in the TCC (two of them).

As Stuart-Smith J said in his January judgment (which was concerned with Celtic Composting Systems Ltd), the dispute is “developing into a procedural war between the parties”. Fertile ground indeed (if you will pardon the pun). Continue reading →

REUTERS | Thomas Peter
March 31, 2014

March 2014 digest: spring time

Percy Bysshe Shelley, The Question:

“I dreamed that, as I wandered by the way, bare winter suddenly was changed to spring.”

This month, with the vernal equinox on 20 March, winter officially turned to spring in the northern hemisphere. It was a time when day and night were the same length and it heralded the start of warmer and sunnier days (hopefully). We also lost an hour’s sleep!

March is also budget time. This year saw the Chancellor deliver his fifth budget and we told you all about the construction, property, environmental and tax announcements. You can find out more on our budget page, including comments from leading tax experts.

With spring comes new beginnings. Continue reading →

REUTERS | Ricardo Moraes
March 26, 2014

“The Legend of Sleepy Hollow” – pitfalls of a failed novation

With design and build (D&B) now firmly established as the procurement route of choice for many UK building projects, novation is a popular way of ensuring that single point responsibility for design rests with the contractor. However, the recent decision in Hillcrest Homes Ltd v Beresford and Curbishley Ltd reminds us that we must not take it for granted. In that case, a novation agreement executed by the structural engineer after practical completion was held not to be effective to transfer its appointment to the contractor. As a result, the employer remained responsible for structural design defects as between it and the contractor.

Continue reading →

REUTERS | Bob Strong
March 25, 2014

Behold the Celtic adjudication tiger (almost)

I was lucky enough to travel to Dublin a couple of weeks ago to talk at a conference about the Construction Contracts Act 2013, Ireland’s long awaited answer to the UK’s Construction Act 1996. My job was to talk about my experience of construction adjudication and how this might be relevant to adjudication in the Emerald Isle. I thought that it might be useful to set out some of the key features and issues that cropped up at the conference.

Continue reading →

REUTERS | Ilya Naymushin
March 18, 2014

ICC Infrastructure Conditions of Contract re-launched

On 4th March 2014 I attended a presentation at the Society of Construction Law (SCL) by John Uff QC and John Banyard from the drafting committee concerning the re-launch of the ICC Infrastructure Conditions of Contract.

Originally, these were the ICE Conditions of Contract familiar to many generations of civil engineers. However, they have had a chequered history of late having been discontinued by the ICE in favour of NEC in 2010. Subsequently, ACE and CECA took them over and in 2011 they issued a suite known as the ICC Infrastructure Conditions of Contract. However, they remained substantially in the same form as the original ICE version. Confused? Continue reading →

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