There has been a debate in adjudication circles for some time now about how cost effective adjudication is for small value claims. After the Court of Appeal’s judgment in Walker Construction (UK) Ltd v Quayside Homes Ltd, I anticipate that the debate may gain momentum again.
The TCC’s decision in The Secretary of State for Defence v Turner Estate Solutions Ltd provides yet another example of the courts refusing to interfere with the arbitration process and disturb an arbitral tribunal’s award. In addition, it:
The case also provides a useful analysis of the approach that a court may take to various provisions of section 68 of the Act. Continue reading
The Ministry of Justice (MoJ) has consulted on increasing court fees, including in the TCC. The aim is to reduce the cost to the taxpayer; to achieve full cost recovery by making those who can afford to pay contribute more to the costs of the courts.
Many lawyers are up in arms about the proposals. My initial thought was that the proposals seemed broadly reasonable, especially when compared with the cost of arbitration, but that can’t be the only measure. The MoJ must also consider the disproportionate impact on smaller disputes, often brought by individuals or SMEs. Continue reading
When I was reading Edwards-Stuart J’s judgment in Twintec v Volkerfitzpatrick, I was a little bit surprised to see he’d granted an interim injunction to prevent the referring party (Volkerfitzpatrick) from continuing with its adjudication while he decided whether the adjudicator was properly appointed. On the facts, the final injunction was less of a surprise. Perhaps what was more surprising was that the responding party (Twintec) had elected to use the injunction route, rather than the more common declaratory relief route (under CPR Part 8).
What is the correct approach to causation in cases concerning natural nuisances where a landowner does nothing at all to abate such a nuisance on his land?
That was the question for the Court of Appeal in Robbins v London Borough of Bexley, a case that concerned property damage caused by tree roots. Continue reading
A trip down the sweetshop memory lane brings to mind a whole host of childhood goodies: black jacks, flying saucers, cola cubes, sherbert fountains and, of course, refreshers. Described on one website I found as a “fizzy fruity sherbet hard candy sweet”, a refresher is also often used to describe a course or seminar that gives people an opportunity to review a particular subject. It was this latter description that came to mind when I read Akenhead J’s judgment in Wales and West Utilities v PPS Pipeline Systems.
William Wordsworth, Resolution and Independence:
“There was a roaring in the wind all night, the rain came heavily and fell in floods, but now the sun is rising, calm and bright.”
Our monthly digest often starts with a weather-related quote, and this month is no exception, what with all the rain and flooding that the country has experienced since Christmas. Continue reading
A client called me recently to discuss an issue that is probably familiar to many clients. On this particular project the pace of work is slowing, the contractor has missed a number of key programme dates and completion by the contractual date for completion is looking very unlikely. The contractor is obliged to progress the works with due diligence. Is it in breach of this obligation?
The principle that an adjudicator should not go off on a frolic of his own is clear and well established. If he does, he breaches the rules of natural justice and his decision will not be enforced by the courts. Many examples exist in the law reports of what happens when the adjudicator veers away from the parties’ submissions, starts relying on his own knowledge and expertise and, somewhere in the process, crosses the line. It may sometimes look like a fuzzy line, even to regular users of adjudication, but there is still a line that should not be crossed.
It goes without saying that one of the most important advantages of the “rule of law” for commercial parties is the right to enforce contractual obligations. Coupled with this is a need for contractual certainty. The law is there to enforce rights, particularly where those rights have been agreed upon. It provides a system for the resolution of disputes as to what those rights are.
Many years ago (I’ve noticed that I keep saying that nowadays) I wrote a dissertation entitled “The Autonomous Contract”. This looked at the question of whether a commercial contract between experienced parties could be completely self-regulating, with no possibility of interference by the courts, except to enforce its terms. Was it possible to draft the perfect exclusive remedies clause? Continue reading
