All posts by Practical Law Construction

REUTERS | Toby Melville
December 14, 2015

Mediation update: indemnity costs for unreasonable refusal to mediate and no dispute too intractable

Recent weeks have brought two further decisions concerning an unreasonable refusal to mediate. The message from the courts on when to deal with a request to mediate is now clear: parties are expected to respond promptly. The message on how parties should respond is more opaque.

The courts, with Halsey v Milton Keynes no doubt in mind, have not gone as far as to say parties cannot ever refuse to mediate. However, unless a statute permits a party to say no (as I discussed previously in the context of the ADR Regulations 2015), the likelihood of a court now finding that a party has validly and reasonably refused to mediate does seem remote. Continue reading →

REUTERS | Brian Snyder
December 14, 2015

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2015 next week, to arrive in your inbox on Thursday 24 December 2015. We are then taking a break until the new year.

The first email of 2016 will be sent to arrive in your inbox on Thursday 7 January 2016. This email will include reports of all developments since 23 December 2015, as well as Practical Law’s looking forward to 2016 pieces.

Merry Christmas and a happy new year from Practical Law.

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REUTERS | Pauline Askin
December 9, 2015

Interplay between Civil Liability (Contribution) Act 1978 and limitation of liability clause

In Bloomberg v LP v Malling Pre-Cast Ltd, a judgment that well illustrates the decline of “business common sense” as an aid to contractual interpretation, Fraser J considered the interplay between section 1(3) of the Civil Liability (Contribution) Act 1978 and a clause limiting liability in a contractor’s collateral warranty. Continue reading →

REUTERS | Peter Andrews
December 8, 2015

Harding v Paice and Springall – the Christmas special

Let me take you back almost 12 months to my blog on ISG v Seevic. I left you with the following question:

“What would have been the case if this had been the final payment, rather than an interim payment?”

Would the same principle apply so that Seevic was not entitled to refer a dispute concerning the merits of the final payment to adjudication?

Well, almost 12 months later we may (see below for my caveat) have the answer from the Court of Appeal. Continue reading →

REUTERS | Juan Carlos Ulate
December 2, 2015

TCC gets its hands dirty on delay and disruption claims for unforeseen ground conditions

In Van Oord UK Ltd and another v Allseas UK Ltd, Coulson J showed that the TCC isn’t afraid to roll up its sleeves and get its hands dirty when considering disruption and prolongation claims arising from unforeseen ground conditions, among other things.

This type of claim is often very difficult to prove and this judgment demonstrates that a contractor must be able to make out its case on liability, causation and quantum and have the evidence to support that case. Continue reading →

REUTERS | Dani Cardona
December 2, 2015

Decisions, decisions, decisions (in adjudication)

In Harding v Paice and another, the Court of Appeal has held that an adjudicator’s previous decision that, because an employer failed to serve a pay less notice, he was obliged to pay the amount stated in a contractor’s final account, is no bar to the employer starting a further adjudication to determine the true value of the final account. In doing so, the court upheld Edwards-Stuart J’s judgment in Harding v Paice and another. Continue reading →

REUTERS | Leonhard Foeger
December 1, 2015

Twelve reasons why expert’s evidence was “entirely worthless”

Countless generations have sung along to the Christmas carol, The Twelve Days of Christmas, with its simple lyrics and cumulative effect. We all know how it goes:

“On the first day of Christmas my true love sent to me
a Partridge in a Pear Tree.”

A new gift is added each day (turtle doves, French hens, calling birds, gold rings, geese a-laying, swans a-swimming, maids a-milking, ladies dancing, lords a-leaping, pipers piping and (finally) drummers drumming), although, perhaps, it is not so easy to remember after a little Christmas sherry!

There may not seem to be much of a connection between the carol and Coulson J’s judgment in Van Oord UK Ltd and another v Allseas UK Ltd (about the laying of an on-shore gas pipeline in the Shetland Islands), but bear with me on this one.  Continue reading →

REUTERS | Vasily Fedosenko
November 30, 2015

November 2015 digest: Autumn Statement, penalties rule and dogs

John Clare, Remembrances:

“Summers pleasures they are gone like to visions every one, and the cloudy days of autumn and of winter cometh on.”

As November ends, so does autumn. It may mean the start of winter, but it also means it is time for the government’s Autumn Statement. This year, George Osborne said he was going to “rebuild Britain”, which may be good news for the construction industry. Continue reading →

REUTERS | Leonhard Foeger
November 30, 2015

The new stomping ground: validity of payment applications

Since the consequences of failing to serve a valid and timely payment notice or pay less notice can be severe (see ISG Construction Ltd v Seevic College), it perhaps should come as no surprise that in recent cases, there has been increasing attention on the validity of the application for payment because, without this, there can be no “notified sum” due to the contractor and, therefore, no requirement to serve a payment or pay less notice.

Three recent TCC decisions show that the court requires applications for payment to be clear and unambiguous. A requirement which may, in the future, be more strictly applied to employer’s notices. Continue reading →

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