Recent weeks have brought a further decision on settlement agreements in the form of Caroline Gibbs v Lakeside Developments Ltd. Continue reading
REUTERS | Dinuka Liyanawatte
September 26, 2016
Mediation update: settlement agreements and drafting in advance
REUTERS | Russell Cheyne
September 22, 2016
Innovation, can we get some more?
“Innovation” and “collaboration” are the kind of buzz words that are batted around very frequently. Unfortunately, the more often I hear them, the less sure I am of what their importance is in an infrastructure context. Some of the answers can be found in the report, Innovation in the Supply Chain, which was published following a joint investigation by Costain, the University of Cambridge and Pinsent Masons LLP into construction practitioners’ views on innovation and collaboration in construction contracts.
This report provides an interesting snapshot of how industry practitioners view the contractual status quo and what can be done with current contracts in order to get the industry to collaborate and innovate more. Continue reading
REUTERS | David Gray
September 21, 2016
Court of Appeal in Transocean interprets limitation and exclusion clause
The judicial task is one fraught with difficulty: the complexity of the issues, the evolving nature of the common law, and the risk of appeal all figure large. This is particularly the case when judges turn to consider the correct interpretation of limitation and exclusion clauses, for two principal reasons:
- The law of interpretation of contract terms has gained nuance from each House of Lords and, subsequently, the Supreme Court’s pronouncement (the cases of ICS v West Bromwich, Chartbrook v Persimmon, Rainy Sky v Kookmin and Arnold v Britton each state or restate the principles). However, when it comes to exclusion or limitation clauses there are equally numerous pronouncements that “special” and aged rules (contra proferentem, the need for clear words, the principle in Canada Steamship) may apply.
- The importance of the issue of whether a loss is excluded or limited to the parties means there is both opportunity and appetite to appeal.
These difficulties were aptly demonstrated recently in Transocean Drilling UK Ltd v Providence Resources plc. Continue reading
REUTERS | Fred Thornhill
September 20, 2016
Is it time for greater gender parity among adjudicators?
It struck me the other day that, of the vast number of adjudications I have been involved in over the last 12 years, only once has a female adjudicator been appointed. So I asked my colleagues whether my experience is typical. It is. Continue reading
REUTERS | Yuri Maltsev
September 20, 2016
RICS consults on fourth edition of adjudicator’s guidance note
When RICS published the third edition of its guidance note, Surveyors acting as adjudicators in the construction industry, it was Jonathan who told you all about the changes. Therefore, it is only fair that I take a turn and look at the consultation draft for the fourth edition, highlighting some of the proposed changes from the third edition. Continue reading
REUTERS | Ognen Teofilvovski
September 13, 2016
Harding v Paice and Springall – Episode V: a case of no apparent bias
I wonder if you, like me, sometimes get confused by the names and numbers of the Star Wars films. For those of us born before the 80’s there were only ever three: Star Wars, The Empire Strikes Back and Return of the Jedi. However, now the first film is called Star Wars: Episode IV – A New Hope, and we’ve had prequels and sequels. Personally, I’ve lost track.
A similar problem arises with the TCC adjudication enforcement cases involving the long-running battle between Gary Paice and Kim Springall (property developers) and MJ Harding (building contractor). This is our fifth blog on cases involving these parties, and the last two have been the Christmas special and the Prequel. I have decided to rename them in a Star Wars-esque fashion, and I will therefore refer to this as Episode V. Continue reading
REUTERS | Jumana El Heloueh
September 7, 2016
Court of Appeal quells hope of an organising principle of good faith in English law
As an Australian-qualified lawyer, any judicial mention of “good faith” in the English courts piques my interest. Australian courts readily imply broad duties of good faith into commercial contracts. By contrast, you don’t need to look further than Chitty on Contracts, Vol 1 (Sweet & Maxwell 32nd ed, 2015), paragraph 1-039, to find that “in English contract law, there is no legal principle of good faith of general application”. That is, until members of the judiciary, such as Leggatt J began to warm up to the idea. However, in its unanimous judgment in MSC Mediterranean Shipping Company S.A. v Cottonex Anstalt, the Court of Appeal has curbed this enthusiasm. Continue reading
REUTERS |
September 6, 2016
Adjudication costs and the Late Payment of Commercial Debts (Interest) Act 1998 (Part 2)
In my last blog, I looked at the potential conflict between section 108A of the Construction Act 1996 and section 5A(2A) of the Late Payment Act 1998, and concluded that the recent case of Lulu v Mulalley hasn’t provided us with a definitive answer to the question of whether a conflict exists.
This week I’m going to consider how the Late of Payment Act 1998 can be ousted, and what might constitute a “substantial remedy”. Continue reading
REUTERS | Paulo Whitaker
August 31, 2016
August 2016 digest: Olympic success
Pierre de Coubertin, founder of the International Olympic Committee:
“The important thing in the Olympic Games is not to win, but to take part; the important thing in Life is not triumph, but the struggle; the essential thing is not to have conquered but to have fought well.”
With test cricket and Rio 2016 both finishing this month (and congratulations to Team GB for coming second in the medals table), it feels like summer is finally drawing to a close. The school holidays may still be with us (just), but August has been a relatively quiet month on the current awareness front. Continue reading
REUTERS | Amir Cohen
August 30, 2016
The latest chapter in Harding v Paice
In a decision handed down last week, Ms Finola O’Farrell QC (sitting as a deputy High Court judge) has held that Mr Paice and Ms Springall (the employers) are entitled to have a recent adjudication decision of Mr Christopher Linnett enforced. She did not accept the submissions made by Mr Harding (the contractor) that:
- The adjudicator’s decision was reached too late and therefore a nullity.
- There was apparent bias on the adjudicator’s part.
