All posts by Practical Law Construction

REUTERS | Daniel Munoz
February 2, 2016

Increased use of mediation in construction disputes

Is it just me, or has anyone else noticed that there is an increased use of mediation in construction disputes these days? Also, is it purely coincidental, or does it seem to have come at a time when there seems to be less adjudication (and adjudication enforcement) about?

Perhaps it is simply that it is on my radar because, lately, I’ve been receiving more appointments as a mediator, and people have been talking more about the subject. For example, we have seen a number of posts by Liz Repper over the last couple of years all focusing on different aspects of mediation (including the courts’ attitude towards those parties that fail to mediate and reasons why we may see more parties mediating in the future).

The courts are also being more supportive of the process, imposing costs sanctions on those that refuse to mediate or otherwise behave unreasonably. Continue reading →

REUTERS | Dinuka Liyanawatte
January 28, 2016

Henia v Beck: time for a rethink?

Google the decision in Henia Investments Inc v Beck Interiors Ltd and you will find a raft of articles championing the decision as adding yet further weight to the argument that payment applications submitted by the “payee” must be clear and unambiguous.

However, what is noticeably absent from the commentary is any discussion regarding the degree of confusion that the decision has created in respect of the role of the payment notice and pay less notice regime.  Continue reading →

REUTERS | Leonhard Foeger
January 26, 2016

A wet start to 2016: flooding and stemming the loss

Along with the more pleasant festive traditions, this winter saw yet another series of floods causing chaos throughout the country. December 2015 was the wettest calendar month on record since 1910 and it is estimated that the cost of this winter’s floods will exceed £5 billion. According to the Met Office, extreme weather has become more frequent since 1950 and, in light of increasing global warming, such extremes are likely to become more frequent in future.

Contractors and employers alike have been affected by the seasonal severe weather, and many will be poring over the terms of their contracts to see what relief is available when bad weather strikes. With this in mind, I thought it high time to revisit how JCT and NEC3 deal with severe weather and to take a brief look at the government’s scattergun response, to see if this is likely to be of any real help. I’ll conclude with some practical steps that parties to a construction contract can take to try and stem the loss flowing from flood damage. Continue reading →

REUTERS | Kacper Pempel
January 25, 2016

Updated jurisdictional guidance for UK adjudicators

Those of you that are members of the Adjudication Society and/or the Chartered Institute of Arbitrators may well have seen that these two organisations have recently come together again to publish the third update of their guidance note for adjudicators, Jurisdiction of the UK Construction Adjudicator.

I welcome the updated guidance note. It is an interesting and helpful document, which highlights that ensuring:

“…an adjudicator has the jurisdiction to decide the dispute referred to him is of utmost importance to the adjudication process.”

Given the number of reported decisions on jurisdiction over the years, I doubt many would disagree with this opening sentiment. Continue reading →

REUTERS | Stephen Hird
January 20, 2016

The Pre-Action Protocol for Construction and Engineering Disputes: what do users really think?

Amid speculation that the Pre-Action Protocol for Construction and Engineering Disputes (Protocol) might be abandoned, or made voluntary, by the Civil Procedure Rule Committee, the TeCSA committee (on which I sit) felt that it was important to obtain the industry’s views, to inform the debate on the Protocol’s effectiveness. As Simon Tolson, retiring chairman of TeCSA, told its members, TeCSA “decided to undertake a detailed study obtaining views from not just solicitor specialists but from across the industry”. TeCSA sponsored a major piece of research, carried out by an independent company on its behalf, to evaluate the perceived value of the Protocol.The final report was published last week. Continue reading →

REUTERS | Kacper Pempel
January 19, 2016

Clarity is key when contract drafting and picking your ANB

It is ironic that in a judgment commenting on poor contract drafting (Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd), the judgment is particularly poor in explaining how the contract was put together and which amendments were made when. However, I guess that happens sometimes. Obviously, if the parties had been clearer about which adjudicator nominating body (ANB) and which adjudication rules applied to disputes under their contract, they wouldn’t have found themselves in the pickle they did.  Continue reading →

REUTERS | Sukree Sukplang
January 13, 2016

For, heaven rest us, I am not asbestos: excluding liability for contamination and asbestos

Some of you may recognise the title line from the song “I Won’t Dance”, performed by a whole selection of sassy singers throughout the ages: Frank, Louis, Ella, and more recently Lady Gaga. This line is not the easiest to interpret. According to one view, it is all about the perils of dancing with the singer “clad in a frock called ‘An Armful of Flame'”.

Stuart-Smith J had a similarly difficult task interpreting the meaning and effect of an asbestos-related exclusion clause in a professional appointment in Persimmon Homes Ltd and others v Ove Arup & Partners Ltd and another. The case was  complicated by the various contractual arrangements between the parties. Continue reading →

REUTERS | Thomas Peter
January 12, 2016

What constitutes a written instruction?

Construction contracts will normally specify that variation instructions must be in writing. But what exactly does this stipulation mean? Will this cover any form of communication, such as an email, drawing or meeting minute?

This issue is not only important for contractors seeking payment for disputed changes. It is also important for contract administrators who may owe duties to the employer in respect of the nature and extent of variations that they are authorised to instruct. Continue reading →

REUTERS |
January 12, 2016

Questions over basis of parties’ contract no barrier to adjudication enforcement

In a rather lengthy judgment handed down just before Christmas, Stuart-Smith J has shown once again the TCC’s pragmatic approach to the enforcement of an adjudicator’s decision, and how the judges are not allowing overly technical challenges to defeat the purpose of the payment provisions of the Construction Act 1996.

In case you missed it amongst the festivities, I’m talking about the judgment in RMP Construction v Chalcroft. Continue reading →

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