Parties are often so concerned about getting the express terms of the contract right that they forget about implied terms.
Following the Supreme Court decision in Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd, this blog looks at some of the key statutory and common law terms which may be implied into construction contracts. It concludes with some practical tips to bear in mind when navigating this tricky field. Continue reading
Unlike some meetings held during the course of construction projects, pre-start meetings can be quite refreshing. There is normally an air of positivity and of everyone wanting to work together to make the project a success (the bitterness of disputes has not yet set in).
I want you to imagine that such a pre-start meeting is taking place for a 12-month project, with Jack representing the main contractor and Jill the employer. They have agreed that there will be periodic monthly payments and, thanks to the Construction Act 1996’s complicated payment provisions, they have agreed a payment schedule recording for each of the 12 months the dates when Jack’s applications for payment can made, the due date for payment and when Jill’s payment notice and any pay less notice should be served.
I now want you to imagine that you walk into the meeting at this point and say:
“What if Jack is delayed by an event that entitles him to an extension of time, or possibly his own risk event. Will the monthly payments continue past the dates agreed in your schedule?”
I’m willing to take a guess that 9 times out of 10, both Jack and Jill would say, “of course, the monthly payments will continue up to completion of the works”. However, while that be may Jack and Jill’s view, Stuart-Smith J’s judgment in Grove Developments v Balfour Beatty has shown us that this won’t necessarily be the case under the Construction Act 1996. Continue reading
In two recent decisions, the Court of Appeal has reconsidered the question of whether the dispute in successive adjudications is “the same or substantially the same” dispute. The answer to the question is important because paragraph 9(2) of the Scheme for Construction Contracts 1998 provides that if the second dispute is the same or substantially the same as the previous dispute, the adjudicator must resign. Therefore, the issue has arisen in a number of reported cases. Continue reading
This post considers two independent, albeit related, issues:
I found the judgment in John Sisk v Duro Felguera an interesting read, particularly the adjudicator’s use of a third party (Mr Hutchinson) to assist him in the adjudication. It made me think about how I’d have dealt with the situation, if I had been in the adjudicator’s position and had wanted to use the services of a third party. (Incidentally, it also reminded me of the “phoning a friend” case a few years ago, although the outcome then was entirely different.) Continue reading
On 25 January 2016, the Evening Standard carried an article headed, “City boss in ‘Wild West’ mega-basement battle“. This described the latest round in the long running battle between Mr and Mrs Fairholme and two sets of their neighbours, resulting from the construction of a new basement beneath their substantial semi-detached house in Kensington. The angry neighbours are the owner-occupiers of the other semi-detached house, and the owners of flats in a nearby block that shares a garden wall with the Fairholmes.
This note describes an earlier part of the confrontation, resolved in the County Court at Central London in September last year. It turned on whether the method of construction of the walls and floor of the new basement contravened the Party Wall etc. Act 1996 (PWA 1996). Continue reading
A friend phones you for legal advice. He is in the middle of home extension works and while they started off well, the works are now running well behind schedule and the standard of workmanship is shoddy. What do you do? Hang up in a panic or confidently recite Supreme Court judgments and reassure them that you are happy to help out and advise them for free. They are a friend after all.
I found myself in a not too dissimilar position shortly before Christmas. My mother called about a wood-burning stove she had installed in her living room. It had been fitted poorly and was leaking onto the carpet. Before I knew it, I found myself reeling off the various causes of action she could bring in contract, tort and (more exotically) unjust enrichment, citing the pertinent provisions of relevant legislation with bombast and aplomb. Had I read Burgess v Lejonvarn at that stage I would have exercised a little more caution. Continue reading
As I predicted in my blog post two weeks ago, the TCC has now been addressed on the argument that an out of time payment notice can stand as a valid pay less notice under the provisions of the Construction Act 1996.
In Grove Developments Ltd v Balfour Beatty Regional Construction Ltd, Grove sought (in the alternative), a declaration that:
“…if the last date for service of a Pay Less Notice was earlier than 15 September 2015, GDL’s Payment Certificate constituted a valid Pay Less Notice.”
As I discussed previously, this submission was endorsed by Akenhead J’s finding in Henia v Beck. Continue reading
Most of you reading this blog are likely to have read a domestic main contract or sub-contract in the past few days (if not the past few minutes) under which a dispute has arisen. Many of you will also be saying to yourselves, “of course I know whether I can arbitrate my dispute under that contract you silly fool”, and will have already moved on to reading another blog (or possibly social media?).
However, some readers may have no experience of domestic construction arbitration. This may be because they qualified after the introduction of statutory adjudication in 1998 or because of the simultaneous improvements in the Technology and Construction Court (TCC), the combined effect of which has been a steep decline in the number of domestic construction arbitrations. If you fall into this category (or even if you don’t), you might want to read on. Continue reading
A range of issues arise from the facts of Kier Construction Ltd v WM Saunders Partnership LLP. However, the main point to note is that the Scottish courts are willing to order specific implement (specific performance) to compel a party to a contract to provide an executed collateral warranty that they were contractually obliged to give. Continue reading
