Sometimes the old cases are the best ones and that surely has to be true of the Ikarian Reefer. Even now, over 25 years since the judgment at first instance was handed down (and countless other pieces of guidance have been published) we still see experts getting it wrong.
I’m not sure if anyone remembers what the case was about (I certainly didn’t) but, even without looking it up, I’d have guessed it was a shipping case (the clue is in the name!). Continue reading
The Palladium is a mighty fine looking “superyacht”. It is an impressive 95 metres long and has all the features one would expect on such a luxury craft, including a helicopter landing pad and swimming pool. A Google search suggests that the yacht is worth circa $200 million, so one can see that a defect in the paint finish would be costly to rectify. It is this defect that ultimately led the parties to an arbitration, for which a five-week hearing was set.
The case ended up before the court because, during the arbitration, an issue arose as to whether the yacht builder’s without prejudice settlement offer had been accepted by the purchaser in correspondence. The purchaser contended that a binding settlement had been reached, which the builder denied. Continue reading
Since at least medieval times, philosophers have struggled with what has become known as the “omnipotence paradox“:
“If God is all powerful, can s/he create a stone so heavy s/he cannot lift it?”
Thomas Aquinas and Rene Descartes, among others, would no doubt be relieved to know that the English Supreme Court has now resolved the matter (in Rock Advertising v MWB Business Exchange Centres). At least, that is no doubt what Lord Sumption would like us to think. There may also be some construction lawyers rifling back through recent advices to check whether a swift re-think might be necessary. Continue reading
Increasingly, our clients are requesting that we incorporate provisions for modular building techniques into their construction contracts. There seems to be a real trend for including at least some aspects of “modular” into development and other projects.
It is open to debate whether this is driven by improvements in design and adaptability of modular building as a construction method, or by market forces such as labour shortages and rising material costs. The fact remains that modular building is on the increase and brings with it some key considerations in terms of risk. Continue reading
I recently looked at some bespoke drafting that, as Eric Morecombe might have put it, had all the right words, but not necessarily in the right order. To avoid a fracas, I suggested that using a familiar standard form might be a better starting point and would save quite a bit of time. My idea was received with surprising enthusiasm.
There will always be aspects of the standard forms that don’t achieve the collective hopes and dreams of the parties, hence the practice of amending them. But, if you start with the right form, you often find that most of the drafting fits the bill. Continue reading
I was in Dublin last week giving a talk to the Irish branch of the SCL. I’d prepared a talk on fraud in arbitration, adjudication and mediation and, during the day, I was made aware of the judgment in WL Construction Ltd v Chawke and Bohan (a thank you is due to Mark Warren in this regard). As it wasn’t a case I was familiar with, I thought I’d take a look and share my thoughts on the blog.
Funnily enough, it is almost exactly 12 months since I last looked at fraud, and on that occasion I borrowed from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that:
“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”
When you see what happened in WL Construction, you will realise just how on point Lord Denning was over 60 years ago. Continue reading
It is notoriously difficult to resist payment following a call on an on-demand guarantee or bond. Generally, nothing less than a seriously arguable case of fraud by the beneficiary will suffice. The stringency of this test is backed by strong policy arguments militating in favour of protecting the integrity of the banking system. However, even where a seriously arguable case of fraud is made out, the balance of convenience may weigh against injunctive relief, as demonstrated recently in Tetronics (International) Ltd v HSBC Bank plc. Continue reading
For many years, parts of the construction sector have pushed for improvement of the market’s treatment of retention monies. Post-Carillion and its devastating impact on suppliers, however, matters may have reached a tipping point.
On 9 January 2018 – a few days before the construction giant’s collapse – the backbencher Peter Aldous introduced the Construction (Retention Deposit Schemes) Bill under Parliament’s Ten Minute Rule.
Given the importance of government support in mustering a majority in the House of Commons, relatively few Private Members’ Bills (PMB) become law. To this end, proponents of the “Aldous Bill”, not least the Waveney MP himself, have been busily promoting its merits within the industry and rallying support among politicians ahead of it being debated by MPs at the second reading. Continue reading
The Construction Act 1996 turned 20 this month, which means that for the last 20 years the UK’s construction industry has been subject to its statutory adjudication and payment rules. I was just a couple of years out of university 20 years ago, so I’ve never really known a world without these things (something that Lucy Garrett QC noted in her video for Practical Law). I remember doing presentations to clients in the months leading up to May 1998 on the implications of the Act and, in particular, the payment and withholding notices regimes. It seems a long time ago now!
Looking back, a lot has happened since May 1998 and I thought that I would highlight just a few aspects of adjudication. Given the volume of case law and the limited space I have here, this is by no means a comprehensive review. Continue reading
Last year, I blogged on the first instance decision of the Scottish courts in SSE Generation Ltd v Hochtief Solutions AG and another. That decision has been overturned by the Inner House, Court of Session (the Scottish equivalent of the Court of Appeal) in an important judgment that sheds light on how the English courts might interpret the provisions of the NEC engineering and construction contract (ECC) that govern the extent of a design and build (D&B) contractor’s design liability.
My colleague, John Hughes-D’Aeth, recently blogged on the joint insurance aspects of the case, but in this blog I focus on contractual interpretation. Continue reading
