All posts by Practical Law Construction

REUTERS | Toby Melville
November 22, 2016

The perils of serial adjudication

Major construction projects often result in a number of adjudications between the same parties. It is a hazard of the job, so to speak. Known as “serial adjudication“, it can give rise to a number of issues, not least the question of what the previous adjudicator(s) decided.

While it is easy to say that the decision in adjudication one is binding on subsequent adjudicators (as is the decision in adjudication two and so on), in practice it isn’t always easy to see if the dispute that was referred in adjudication two (or three) was the same as the dispute in adjudication one (and two). As everyone knows, this has led to a considerable body of case law on the question of whether the dispute is the “same or substantially the same“. It is a question that goes to the heart of an adjudicator’s jurisdiction.

The issue of serial adjudication was before me recently, when I had to untangle what was (and what wasn’t) decided by a previous adjudicator. It reminded me of some of the issues in HHJ David Grant’s judgment in Niken Construction Ltd v Trigram Carver Street Ltd. Continue reading →

REUTERS | Ibraheem Abu Mustafa
November 16, 2016

Collateral warranties: you can lead a horse to water…

I met with a client last week to talk over some issues that they are having on some long term consultant framework agreements where they are the “employer”. One particularly thorny issue is that instructions to proceed with a specific call-off under the framework are often resulting in fresh negotiations on the terms of the collateral warranties, and in particular a proposed reduction in the level of PI insurance that the consultant is prepared to offer in relation to the scope of work being instructed.

This is happening despite the fact that the framework already obliges the consultants to give collateral warranties in specified terms and to maintain an agreed level of PI. So what can my client do in this situation? Continue reading →

REUTERS | Dominic Ebenbichler
November 16, 2016

What’s new in the JCT 2016?

Over the last six months, the JCT has been quietly releasing parts of its new 2016 suite of standard form contracts. What started with the Minor Works Building Contracts (July), has now been joined by the Design and Build Contracts (September) and Standard Building Contracts (October), and is soon to be joined by the Intermediate and Major Projects Forms later in the year.

Previous major editions of the JCT introduced substantial changes. For example, the:

By contrast, the new 2016 editions tread very lightly indeed. So, what’s new? Continue reading →

REUTERS | Maxim Shemetov
November 15, 2016

Parties in same dispute jam on M25 contract

I’ve written about expert determination before, but not for some time as it is relatively rare that the courts get to consider this method of dispute resolution. This is probably due to the fact that there are normally such limited grounds on which an expert’s determination can be challenged. Therefore, I was interested to see the judgment in Connect Plus (M25) Ltd v Highways England Company Ltd, where Coulson J had to consider a determination by the now retired former head of the TCC, Sir Robert Akenhead. Continue reading →

REUTERS | Peter Andrews
November 9, 2016

A protocol referee, a new presence on the pitch

What is a protocol referee?

That was the question I asked myself when I saw the agenda for the launch of the new pre-action protocol for construction and engineering disputes and the referee procedure on 2 November. On arrival, I saw the new protocol on which Caroline Pope has commented. I then heard a presentation from Simon Tolson and Alexander Nissen QC, with a summing up by Coulson J.

I now know what the referee is required to do but it remains to be seen how the scheme will operate in practice. It has no parallels in other protocols applicable under the Civil Procedure Rules. Continue reading →

REUTERS | Dominic Ebenbichler
November 9, 2016

Long live the Pre-Action Protocol

Is it really 16 years ago that we users of the TCC first came face to face with the Pre-Action Protocol for Construction and Engineering Disputes? And for all those years most of us have been extolling its virtues as a great tool to assist early settlement of disputes and yet in the same breath moaning about how it has been subject to such dreadful abuse (always by others, never ourselves!). Continue reading →

REUTERS |
November 8, 2016

Adjudication in Ireland is finally a reality

Construction adjudication in Ireland is finally a reality, as the Construction Contracts Act 2013 applies to construction contracts entered into after 25 July 2016.

Over the years, both Jonathan and I have looked at the Act’s progress and, as I was in Dublin a few weeks ago for the latest adjudication and payment claims conference, I thought it was time for another look at what Jonathan once called the “Celtic adjudication tiger“. Continue reading →

REUTERS | Esam Omran Al-Fetori
November 7, 2016

Good faith in construction contracts: a sense of (cross-jurisdictional) perspective

A broad and generally applicable duty of good faith has long been rejected by the English common law. However, as commercial parties to contracts in the Middle East may be aware, the duty of good faith – sometimes referred to as “fidelity to the bargain” – is not only recognised but enshrined within the civil codes of the region. This is, in part, a reflection of the codes’ Egyptian roots, a point I return to below.

In a climate where lack of cooperation and motivation to fulfil the commercial bargain frequently characterise the dispute’s narrative, clients and in-house legal teams in the Middle East need to be prepared to deal with the principle of good faith.

Though often frowned upon when mentioned in an English law setting, it is important to be mindful that even the English courts have, in recent years, sounded-out the possibility of introducing the concept of good faith into contractual dealings. This has tended to be on a piecemeal basis, rather than as a generally applicable doctrine. Continue reading →

REUTERS | Ilya Naymushin
November 2, 2016

Beware the dangers of uncertainty with letters of intent

Alexander Nissen QC’s recent decision in Spartafield Ltd v Penten Group Ltd brings a degree of finality to the long-running dispute between these two parties. It comes after multiple adjudications and previous proceedings in the TCC. Back in March, my colleague Ebony Alleyne discussed what was then the most recent judgment, dealing with the enforcement of an adjudicator’s decision.

The current case represents a final court determination of the disputes that were originally adjudicated. Adjudication is, by its nature, a temporarily binding dispute resolution procedure. This final determination of the issues provides an example of how the process works in action. Spartafield’s attempt to challenge the adjudicators decision at the enforcement stage had been predictably unsuccessful, but the door was always open to issue fresh proceedings and obtain a final determination. Continue reading →

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