- January 17, 2018
Ziggurat: the crumbling edifice of surety bonds
I read the decision in Ziggurat with some incredulity. I hadn’t intended to trespass on Karen Spencer’s territory, and overall I’d agree with her conclusion that the amendments made to the ABI form seem to have confused rather than clarified matters. I’d also agree with Roddy Cormack’s comment that more radical surgery is needed if … Continue reading Ziggurat: the crumbling edifice of surety bonds →
- August 23, 2017
Losing the sympathy vote: Robin Rigg revisited
The Supreme Court’s decision in MT Højgaard A/S v E.On Climate and Renewables UK Robin Rigg East Ltd has spawned a predictable welter of case notes and commentaries. Legal luminaries have analysed Lord Neuberger’s judgment from a variety of angles, noting that the contractor (Højgaard) was held to be under a “double obligation” to comply with … Continue reading Losing the sympathy vote: Robin Rigg revisited →
- February 28, 2017
ACE professional services agreement: does the house of cards stack up?
It is hard to believe that the CIC Consultants’ Contract was published nearly 10 years ago. Having been involved in its gestation, I am only too keenly aware of the compromises that were needed to create a form that was acceptable to the CIC’s constituent bodies, while also (mainly) meeting the needs of commercial developers … Continue reading ACE professional services agreement: does the house of cards stack up? →
- January 9, 2017
A brave new world? Implementing “alliancing” using NEC3
It was only to be expected. Hard on the heels of FAC-1 (the framework alliance contract published by the Association of Consultant Architects, the group responsible for PPC2000) comes a guidance note from the NEC brigade, issued in liaison with the Infrastructure Client Group. It patiently explains that NEC3 offers an “ideal” (translation: “better than … Continue reading A brave new world? Implementing “alliancing” using NEC3 →
- May 4, 2016
Leaving a legacy: the rise of ethical sourcing
The recent wave of major infrastructure projects in London has produced a number of collateral benefits. Key among these has been the opportunity it has afforded to leading clients to focus on the legacy impact of their projects for the industry as a whole. Enlightened leaders such as David Higgins and John Armitt (Olympic Delivery … Continue reading Leaving a legacy: the rise of ethical sourcing →
- 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 … Continue reading Pay less notices: confusion at the Manor →
- May 20, 2015
Design defects in offshore wind turbines: it’s an ill wind…
In my experience, one of the most common causes of construction disputes is conflict or ambiguity between contractual documents. This is perhaps hardly surprising, since they are often prepared by different members of the client’s team. Yet it can easily be avoided if the client is willing to invest a little time and effort (and … Continue reading Design defects in offshore wind turbines: it’s an ill wind… →
- March 11, 2015
Design dilemmas in D&B
The practice of novating design consultants is now a ubiquitous feature of design and build (D&B) contracts in the UK. Over the last 20 years or so, informed by decisions such as Blyth & Blyth Ltd v Carillion Construction Ltd, the wording of novation agreements has evolved to the stage of a largely market standard … Continue reading Design dilemmas in D&B →
- April 9, 2014
Net contribution: a problem shared?
I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old. For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment … Continue reading Net contribution: a problem shared? →
- September 11, 2013
Collateral warranties and the Construction Act – a nasty surprise
After nearly 30 years in the construction law game, I should no longer be surprised when an unexpected decision comes along. But Akenhead J’s judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd made me sit up and draw breath. Last week’s Practical Law legal update notes that the decision will be a “surprise … Continue reading Collateral warranties and the Construction Act – a nasty surprise →
- March 27, 2013
Rainy Sky revisited – common sense in the TCC
I am always nervous when contracts that I had a hand in drafting end up in the High Court. Thankfully it hasn’t happened too often, but when it does there is an inevitable frisson as I wonder what the judge will make of it. Will he agree that my drafting means what I intended it … Continue reading Rainy Sky revisited – common sense in the TCC →
- May 9, 2012
The new RICS measurement rules
I was pleasantly surprised to see a few fellow lawyers at the RICS recently, for the launch of its New Rules of Measurement (NRM) and the accompanying QS & Construction Standards (the Black Book). I had thought this was classic “QS’ing for QSs” territory and that I was the only lawyer sad enough to be … Continue reading The new RICS measurement rules →
- November 9, 2011
Common sense prevails in the Supreme Court: Rainy Sky
Keen readers of this column will recall my bafflement at the Court of Appeal’s decision in Rainy Sky SA v Kookmin Bank. An (as it seemed) routine call on an advance payment bond was denied on the basis of one word – “such“. The word had been carelessly inserted into a clause of the bond, presumably with … Continue reading Common sense prevails in the Supreme Court: Rainy Sky →
- October 12, 2011
The meaning of fitness for purpose
Few expressions are more likely to get construction practitioners hot under the collar than “fitness for purpose”. But is the hype justified? And what does it really mean? I was pondering these questions when recently reviewing a client’s in-house (bespoke) form of design and build contract.
- March 30, 2011
Consultants’ fees, poor service and harassment: reflections on the Phillips case
For anyone who (like me) is going through the ordeal of domestic building work, the tale of Michael Phillips Architects Ltd v Riklin and another has a painful resonance.
- June 23, 2010
The Court of Appeal and advance payment bonds: such sweet sorrow
When I first read the Court of Appeal’s decision in Kookmin Bank v Rainy Sky SA, I couldn’t believe it. Surely I had misunderstood the facts? So I read it again, and everything was as I had thought. Was I missing something?
- March 31, 2010
Contracting with joint ventures
Working on a major infrastructure project recently, I was reminded of the issues that can arise when dealing with contractors undertaking projects on a joint venture (JV) basis. This is an increasingly common approach on large and complex projects (particularly in the roads, tunnelling and power sectors) as contractors look to pool their expertise or … Continue reading Contracting with joint ventures →
- August 5, 2009
JCT Project Bank Account documentation: do the payment provisions work?
In last week’s post I explained the format and purpose of the JCT’s Project Bank Account documentation (PBA) and pointed out problems with its trust provisions. This week I consider the PBA’s provisions for payment into the project account.
- July 29, 2009
JCT Project Bank Account documentation: do the trust provisions work?
The adoption of Project Bank Accounts (PBAs) is one of the key elements in the Office of Government Commerce’s (OGC) drive to promote fair payment practices in the construction industry. So, with the draftsmen of the JCT, NEC and PPC2000 contracts vying for the prize of most OGC-compliant standard form, it comes as no surprise … Continue reading JCT Project Bank Account documentation: do the trust provisions work? →
- April 28, 2009
Net contribution clauses and UCTA
In my previous post, I outlined the facts in Langstane Housing Association Ltd v Riverside Construction Aberdeen Ltd and considered the judge’s surprising decision on the meaning of “current” when deciding which version of the ACE conditions applied. In this post I look at the judge’s analysis of the net contribution clause in the ACE … Continue reading Net contribution clauses and UCTA →
- April 22, 2009
Dodgy currency in Scottish case
The decision in Langstane Housing Association Ltd v Riverside Construction Aberdeen Ltd features some highly dubious judicial reasoning and illustrates the extent to which the courts are out of touch with the real world of contract negotiations for major construction projects. Although a Scottish case, its findings will resonate in England and Wales as well.
- December 12, 2008
Selling a construction company
Construction companies are complex businesses. Typically, a construction company will have entered into numerous contractual arrangements with a range of clients, sub-contractors and suppliers, as well as ancillary undertakings such as bonds, guarantees and collateral warranties. There will be a mix of ongoing and completed contracts, with potential liabilities extending for up to 12 years after … Continue reading Selling a construction company →
- October 27, 2008
Packaging construction and engineering documents
Everyone involved in construction and engineering appreciates the effort involved in planning a project and choosing an appropriate procurement strategy. All too often that work is undermined by careless errors made when compiling the contract documents into a formal agreement. The resulting disputes can be expensive and time-consuming. Here are some tips for avoiding trouble: