All posts by Practical Law Construction

REUTERS | Maxim Shemetov
October 30, 2018

I’ve been blogging for 10 years!

Earlier this year, I was reminded by those lovely people at Practical Law Construction that I’ve been blogging for them for ten years, ever since they launched in October 2008. They told me this is my 320th post, which works out at an average of 2.66 posts a month. If only I had a £1 for every word… Assuming an average of 1,000 words a post, I might not be able to retire just yet, but it sure would go some way to financing a few nice holidays!

My first post was published on 24 October 2008 and was called “How to stay on the right side of the adjudicator“. I started off by reminding everyone that adjudicators are only human (it took Rag ‘n’ Bone man another eight years to sing about this) and that post contained a lot of “don’ts” (eleven, I counted). My last post (before today), looked at the multiple contracts point (when substance and jurisdiction overlap), raised before HHJ Stephen Davies in Rawlings Consulting (UK) Ltd v Maelor Foods Ltd. It is a principle that has been around almost as long as I’ve been blogging!

Jonathan’s 10th anniversary is almost upon us too, as his first piece went live just a few weeks after mine, on 12 November 2008. He looked at the Construction Contracts Bill 2008, which soon fell by the wayside and got replaced by what eventually became known as the ever-so-easy-to-remember LDEDC Act 2011!

And in between? Well, I think we’ve covered the A-Z of adjudication and much more besides.  Continue reading →

REUTERS | Siphiwe Sibeko
October 24, 2018

Saved by silence: Letters of intent and Arcadis v Amec

Employers under construction contracts often find themselves under time pressure to get started with construction of their projects prior to concluding negotiations with their preferred contractor and before the building contract is entered into. In such a scenario, employers commonly choose to rely on a letter of intent. This should give the contractor comfort to proceed with certain elements of the construction works, while the parties continue to negotiate the full contract terms.

Unfortunately not all “letters of intent” are clearly formulated in advance, and the parties may find themselves proceeding with the works on the basis of a series of exchanges and correspondence, as was the case in Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd. Continue reading →

REUTERS |
October 16, 2018

Practical implications for extension of time claims following North Midland v Cyden Homes

I’ve not long returned from the Windy City where I attended the 8th International Society of Construction Law Conference.  I chaired a session titled “Bringing Order To The Delay Melee: Understanding the SCL Delay & Disruption Protocol and AACE RP 29R-03”.

Most of you will be aware of the SCL Protocol, which is now in its second edition, but I would hazard a guess that many of you haven’t come across the catchily titled AACE RP 29R-03 before. It is the Advancement of Cost Engineering’s (AACE) International Recommended Practice No. 29R-03 on Forensic Schedule Analysis.

While AACE RP 29R-03 is very different to the Protocol and focuses on the recommended steps for forensic programme delay analysis, the speakers did an excellent job of summarising how the two documents deal with some of the common issues relating to delay, one of which is concurrency. That got me thinking about the Court of Appeal’s recent judgment in North Midland Building Ltd v Cyden Homes Ltd, and the implications it will have on claims for extension of time.  Will it really have the impact that some commentators are suggesting? Continue reading →

REUTERS | Heinz-Peter Bader
October 12, 2018

Ointment for a sting: Arcadis Consulting v AMEC

The Court of Appeal has come to the aid of Arcadis Consulting (UK) Ltd by overturning Coulson J’s judgment in ​Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd – a case described by the judge as one “with something of a sting in its tail”. The sting in question was Coulson J’s finding that a contract between Arcadis and AMEC did not incorporate any term that limited Arcadis’ liability. As a result, Arcadis faced a potential loss of £40 million. Continue reading →

REUTERS | Andrew Winning
October 10, 2018

When design competitions go bad

Some of the world’s most iconic buildings were conceived as a result of architectural competitions. You may be surprised how often such competitions result in controversy.

Jorn Utzon submitted his winning concept for the new opera house in Sydney in the mid-1950s. He walked away from the project 11 years later (7 years before its grand opening), famously calling it the “Malice in Blunderland” project. Political changes, differences of opinion over procurement, and the realities of turning a groundbreaking concept into something buildable all took their toll. Continue reading →

REUTERS | Kai Pfaffenbach
October 2, 2018

Adjudicator’s chicken and egg jurisdictional dilemma

The last time I looked at the dispute between Rawlings Consulting (UK) Ltd and Maelor Foods Ltd, I was talking about HHJ Eyre’s judgment and how the arbitration clause in a JCT standard building contract can “trump” a Part 8 application for declaratory relief.

This time, I’m looking at HHJ Stephen Davies’ judgment and Maelor’s (the employer) jurisdictional challenge, based on the argument that the dispute which Rawlings (the contractor) referred to adjudication arose under more than one contract.  Continue reading →

REUTERS |
September 26, 2018

Apocalypse Now? Contractor insolvency: an employer’s survival guide

Last year, a developer client raised concerns about the solvency of its main contractor, Carillion. With over 50% of the works still to be completed, the client wanted some advice as to how it could manage the risks (legally and practically) if the contractor did go “pop”. In January this year, the concerns became a reality. This blog addresses these key questions and what followed in the wake of Carillion’s demise. Continue reading →

REUTERS | Rick Wilking
September 18, 2018

Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision

When I was a kid, Top Trumps were all the rage. I know from my own boys that they still are. Back then, it was all about whether you had the fastest car or the most popular footballer (even Star Wars characters featured, but how did you decide if Hans Solo was better than Princess Leia?). Now, just about every topic is covered by a set of cards.

I mention this because a recent TCC judgment demonstrates that the arbitration clause in the JCT standard building contract can “trump” a Part 8 application for declaratory relief, with the court granting a stay of those Part 8 proceedings. Continue reading →

REUTERS | David Mdzinarishvili
September 10, 2018

Risky business: Offshore drilling and using force majeure as an exit route

A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is not all that easy for a party to seek to avoid obligations it has freely undertaken. Continue reading →

REUTERS | Denis Balibouse
September 4, 2018

Vinci v Beumer: the case that keeps on giving (and giving)

It is the start of autumn and July seems a long way off now, with the summer holidays all over and the World Cup just a distant memory. Consequently, it may be easy to have forgotten about Vinci Construction UK Ltd v Beumer Group UK Ltd, which had its latest outing in the TCC at the end of that month. This time it was Jonathan Acton Davis QC (sitting as a deputy High Court judge) who enforced the adjudicator’s decision and dismissed Beumer’s (the sub-contractor) arguments that the adjudicator was in breach of the rules of natural justice.

I think that the interesting part of the case is the third natural justice argument (failure to disclose material) because it was very similar to (and based on) the natural justice argument that Vinci ran and succeeded with in the proceedings before Fraser J but, on this occasion, Beumer lost. Continue reading →

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