All posts by Practical Law Construction

REUTERS | Baz Ratner
March 11, 2016

Transparency is key to avoiding bias allegations

It is not unusual in construction disputes for parties to go back to the same advisors time and again. Everyone has their “favourites”, their preferred experts, mediators, adjudicators and arbitrators, who will be appointed as required.

Therefore, Hamblen J’s judgment in Cofely Ltd v Anthony Bingham and another acts as a reminder to all those involved in our industry of the relationships that may develop and the need for transparency about those relationships. It demonstrates the consequences that may arise when that does not happen and is bound to cause people to sit up and think carefully about who their adjudicator or arbitrator is, and who else may instruct (or has instructed) them. Continue reading →

REUTERS | Miro Kuzmanovic
March 10, 2016

Blurred lines between liability in contract and tort

In Burgess and another v Lejonvarn, Alexander Nissen QC (sitting as a Deputy High Court judge) determined that the defendant owed a duty of care in tort to her former neighbours in connection with what the court held to be the provision of a number of professional services on their garden project.

This was so irrespective of the fact that the parties had concluded no contract, for a whole host of reasons, including that there had been:

  • No offer and acceptance.
  • No intention to create legal relations.
  • No consideration.

Indeed, the court went so far as to say that “the contention that the parties had concluded a contract was a hopeless one”.

Oliver Pearson has already provided a detailed account of the facts of the case in an earlier post, so I won’t repeat that here. I want to look more closely at some of the tortious duties that were found to arise. A number of those duties imported positive obligations to act, and beg the question: if you haven’t entered into any contract, can the law of tort build one for you? Continue reading →

REUTERS | Pauline Askin
March 9, 2016

When is an inadequate mechanism an adequate mechanism under the Construction Act 1996?

According to Edwards-Stuart J in the TCC, it may be when there is an implied term.

In what might have been an unremarkable situation, Edwards-Stuart J has given what some would describe as a remarkable judgment. I refer to Manor Asset Ltd v Demolition Services Ltd, as discussed by John Hughes-D’Aeth last week. Continue reading →

REUTERS | Kham
March 8, 2016

A clear case of different disputes, as confirmed by the Court of Appeal

Most of the judgments that Matt and I comment on in this blog come from the TCC but, occasionally, the Court of Appeal graces us with an adjudication related judgment. It is one such judgment that I want to talk about this week: Mr & Mrs Brown v Complete Building Solutions Ltd. The judgment is quite concise, so I will endeavour to do the same (famous last words!). Continue reading →

REUTERS | Christian Charisius
March 7, 2016

Challenge to claimant’s Part 36 offer fails to make it out of the starting gate

Part 36 offers. Perhaps not a topic that stokes a fire in your belly or gets you out of bed in the morning.

However, I encourage you to spare a few minutes and plough on. Although I cannot promise you scandal, intrigue or even excitement, a recent extension in the law concerning Part 36 offers is nonetheless worthy of your attention. In the course of this blog, I will explain how this change allows parties greater flexibility in making such offers as well as touching on some other general considerations to bear in mind when utilising Part 36. Continue reading →

REUTERS | Thomas Peter
March 7, 2016

Is an oral instruction sufficient for a variation?

Most construction contracts will try to ensure that variation instructions are given in writing. But laying down a hard and fast rule can be difficult since employers often want the flexibility to give oral instructions in certain situations. As a result, construction contracts will often fudge the position, such that it can be unclear whether a variation can be instructed orally. This is especially the case when the contract incorporates a confirmation of verbal instruction (CVI) procedure.

If an employer refuses to pay for a variation because there is no written instruction, the contractor needs to review carefully  the contract to establish precisely what is required for a variation and whether an oral instruction is sufficient. Continue reading →

REUTERS | Thomas Peter
March 2, 2016

Pay less notices: confusion at the Manor

They say that hard cases make bad law, and Manor Asset Ltd v Demolition Services Ltd is certainly a hard case. The nice folks at Practical Law Construction knew that I would have an opinion on it (they know me too well!) and have asked me to share my thoughts with you. I know that the Practical Law Construction team is divided on the subject, so you’ll be in good company if you disagree with my (tentative) conclusion. Continue reading →

REUTERS | John Vizcaino
March 1, 2016

Mischief of referring multiple disputes to adjudication

So, now we all know that you can’t refer more than one dispute to the same adjudicator at the same time without the parties’ consent. Perhaps we always knew this, but am I alone in thinking that section 108 of the Construction Act 1996 and paragraph 8(1) of the Scheme for Construction Contracts 1998 were really referring to multiple disputes in the same adjudication and not multiple disputes in different adjudications?

Well, whether I was alone or not (and I’m sure those of you that disagree will be quick to point it out to me), we now have clarity on the point from Coulson J, following his judgment in Deluxe Art & Theme Ltd v Beck Interiors Ltd. Continue reading →

REUTERS | Max Whittaker
February 29, 2016

February 2016 digest: payment, adjudication and Brexit

The Old Farmer’s Almanac:

“Groundhog found fog. New snows and blue toes. Fine and dandy for Valentine candy. Snow spittin’; if you’re not mitten-smitten, you’ll be frostbitten! By jing-y feels spring-y.”

Although February is the shortest month, it often feels like one of the longest with its seemingly endless cold, grey days. Spring will (hopefully) soon be here and, while we look forward to warmer days, we can read about events later in the year, such as the EU referendum (or Brexit) in June.

After a quiet January, the TCC handed down several interesting judgments this month, including two dealing with payment. One looked at what happens when a payment schedule expires but the work is on-going (and PC has not been achieved), which both Brenna Conroy and Jonathan Cope discussed. The other considered non-compliant payment terms and the need to imply a term (but not from the Scheme for Construction Contracts 1998). Continue reading →

REUTERS | David Bebber
February 24, 2016

Is the civil courts structure review the end for the TCC?

It’s just possible that, what with keeping up on the recent spate of adjudication enforcement decisions, and wondering whether Brexit would mean that English clubs can’t compete in Europe, you might have missed the fact that Briggs LJ is in the middle of conducting a comprehensive review of the civil courts structure (and the interim report is available online).

If you were diligent enough to have spotted this, you might nevertheless have thought it was mainly about introducing an “online court” for relatively modest claims and so not something a successful construction practitioner like yourself needed to worry about. However, hidden away on pages 100-102 (in the section on “The Future of the Divisions”) is the suggestion that the final report will consider the merger of the various Rolls Building divisions into one section, thereby potentially removing the Technology and Construction Court (TCC) as a distinct unit in the manner we currently know it. Continue reading →

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