Practical Law

At least that was the view of Fraser J in his concluding remarks at Adrian Williamson QC‘s SCL talk earlier this week (and, yes, I did warn Peter that I was going to quote him). Adrian was discussing payment under the Construction Act 1996 and was highlighting where we currently are, when it comes to … Continue reading “It’s simply a question of being on top of the admin” →

Last week, I attended Sweet and Maxwell’s tenth annual construction law conference. As the marketing material says, it was a full day that aimed to: “…give construction lawyers a better understanding of how to overcome real-world challenges by providing context and insight from in-house speakers working on current major projects.”

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 … Continue reading Transparency is key to avoiding bias allegations →

Earlier this week I participated in Practical Law’s breakfast roundtable, Key clauses in offshore construction. The roundtable was led by Lucy Garrett and Calum Lamont, barristers at Keating Chambers. As I said when I wrote about the breakfast roundtable on mediation, while Chatham House rules do not permit me to reveal all that was said, what I … Continue reading Practical Law breakfast briefing on offshore contracts →

Last week I participated in Practical Law’s breakfast roundtable, Using mediation to resolve your construction dispute – why and how?. The roundtable was led by Rosemary Jackson QC and Elizabeth Repper, barristers and mediators at Keating Chambers. As I said when I wrote about the last breakfast roundtable on liquidated damages, while Chatham House rules do … Continue reading Practical Law’s breakfast roundtable on mediation →

Last week I participated in Practical Law’s breakfast roundtable, Liquidated damages at a turning point?. The roundtable was led by Adrian Williamson QC and William Webb, barristers at Keating Chambers. As I said when I wrote about the last breakfast roundtable on adjudication, while Chatham House rules do not permit me to reveal all that … Continue reading Practical Law’s breakfast roundtable on liquidated damages →

Ever since the payment rules in the Construction Act 1996 were amended, we have been waiting for parties to argue over them and for the TCC to give its guidance on them. Each year in January, we have suggested that this might be the year when that guidance would be forthcoming. Even at the start of this … Continue reading Payment rules reviewed by the back door of adjudication enforcement? →

Last week I participated in Practical Law’s breakfast roundtable, Adjudication appointment tactics: The do’s and don’ts following recent case law. The roundtable was led by Fionnuala McCredie QC and Paul Bury, barristers at Keating Chambers, and Suber Akther, solicitor-advocate at Siemens plc, who were the legal team involved in Eurocom Ltd v Siemens plc. The workshop explored the … Continue reading Practical Law’s breakfast roundtable on adjudicator nomination →

When advising on a home project there has never been a “right” answer to the question of which contract to choose. As is so often the case, the choice of contract should be governed by the needs of the parties and the project. To date, domestic parties have had to look to the JCT’s home owner/occupier contracts or … Continue reading Adjudicating under a RIBA or JCT domestic building contract →

Adjudication doesn’t come cheap. In recent years, the cost of adjudicating has become one of the most common criticisms of the whole process. As we are often reminded, it was always meant to be about cashflow, to introduce a process that was interim-binding and that would allow the parties to keep working together while, at the … Continue reading Are adjudication costs recoverable in subsequent litigation? →

Over the last year or so, we have posted a number of pieces about costs management. Initially we looked at the extension of the Birmingham costs pilot into all TCC and Mercantile Courts and, subsequently, sought to encourage practitioners to take part in the survey that was reporting on the extended pilot. Michael Mendelblat also drew … Continue reading Costs management moves a step closer →

When Coulson J came to prepare for the second edition of his book, Coulson on Construction Adjudication (Oxford University Press, 2011), he must have realised just how far the law on natural justice had moved forward in the three years since the first edition was published (in 2007). Instead of just one chapter, the second edition … Continue reading Natural justice in adjudication in 2012 →

Costs management is just one aspect of Jackson LJ’s extensive civil litigation costs reforms, which are expected to come into effect in 2013. As part of the roll-out of the reforms, Jackson LJ is giving a series of lectures, designed to “explain the reforms and the thinking behind them”. His latest, the thirteenth, focused on the … Continue reading Influencing costs management (before it is too late) →

A little over four months ago, the costs management pilot that had been running in Birmingham was extended to all TCC and mercantile courts until 30 September 2012. The team monitoring the pilot has now published an interim report. Some may consider it odd that an interim report has been published so early into the pilot, … Continue reading It’s time to have your say about costs management →

There has been considerable debate over the meaning of section 108A of the Construction Act 1996 (as introduced by the LDEDC Act 2009). Most of that debate has centred on the interpretation of section 108A(2) and whether imprecise drafting means that something like a Tolent clause may still be permitted in certain circumstances. However, some … Continue reading Do adjudication rules’ costs provisions comply with amended Construction Act 1996? →

In March 2011, Edwards-Stuart J gave a talk to the Scottish Building Contract Committee and the Society of Construction Law (SCL) in Edinburgh. The SCL has now published his paper for the benefit of all those unable to attend that meeting. The paper, When the adjudicator gets it horribly wrong, refers to the fact that … Continue reading Can the court correct mistakes adjudicators make? →

Much has been written about the anticipated impact that the Supreme Court’s decision in Jones v Kaney will have on expert witnesses and the evidence they give, whether they will need to change their behaviour in court or in the way they write their reports. Going forward, without the protection of expert immunity, it will … Continue reading Construction experts’ expertise and its regulation after Jones v Kaney →

Picture the dilemma. A company was invited to tender for work and it provided a quotation (which included some standard terms and conditions) and then exchanged a number of letters with the employer’s representative. It didn’t sign anything and, although it started work, it didn’t get paid. The employer is now saying that because there isn’t a contract, it … Continue reading I want to be paid. Should I adjudicate? →

How a party finances litigation is usually a matter between it and its solicitor. It may simply agree to pay the costs incurred by its solicitor and the legal team, in the usual way, or it may enter into some form of conditional fee agreement (CFA) that affects the level of those fees, depending on … Continue reading Financing adjudication enforcement proceedings →

Francis Maude, Minister for the Cabinet Office and Paymaster General, has announced that 192 public bodies (quangos) will be abolished (including the Design Council), with others being restructured (for example the Home and Communities Agency (HCA) and the Environment Agency (EA)), and some still on hold pending further review (see below).

Disclosure, discovery, whichever term you choose, the process is synonymous with time and expense in litigation. In subject areas that are document-heavy, like construction and engineering disputes, or large commercial cases, the cost of going through the disclosure process is often a significant part of a party’s overall costs.

Last month we asked for feedback on current trends in construction dispute resolution. We reviewed your comments and combined them with our own thoughts and observations.

Adjudication practitioners sat up and took notice of one judgment earlier this year: Edwards-Stuart J’s decision in Yuanda (UK) v WW Gear. (He held that a Tolent clause in the parties’ contract fettered a party’s right to refer a dispute to adjudication “at any time“, which conflicted with section 108 of the Construction Act 1996.)

Since the initial coalition agreement was published, three key political developments have taken place. None of these developments have fundamentally altered the position for construction companies and construction lawyers, and all mean that some residual political and practical uncertainty remains.

Cases relating to the definition of “construction operations” under section 105 of the Construction Act 1996 often concern adjudication, and not payment. However, whether a contract is a “construction contract” for the purposes of the Construction Act 1996 affects the parties’ payment obligations as well as their right to adjudicate.

Yesterday evening the Society of Construction Law (SCL) hosted Coulson J’s talk, “The perfect adjudicator’s decision”, which was chaired by Paul Darling QC. Coulson J suggested that he had never seen a perfect decision and, unless Kate Winslet was sitting as an adjudicator, the perfect adjudicator does not exist. Therefore, although entitled, “The perfect adjudicator’s decision”, … Continue reading Coulson J’s “Seven golden rules of adjudication” →

Is the cost of litigating large and complicated construction disputes getting out of hand? One only needs to look at the litigation that the redevelopment of Wembley stadium has generated for some recent, extreme examples.

At the Worshipful Company of Arbitrators’ Annual Master’s Lecture yesterday, Sir Vivian Ramsey, the judge in charge of the TCC, discussed the concept of confidentiality in dispute resolution. A copy of the speech should appear on the WCA’s website (as previous lectures have) but, in the meantime, here is a taster.

Following last year’s consultation, Huw Irranca-Davies MP, the Minister for the Natural and Marine Environment, Wildlife and Rural Affairs, has announced that a biological control will be introduced in the UK to try and limit the spread of Japanese Knotweed. The Minister described the problems associated with Japanese Knotweed as “massive”, costing the economy in … Continue reading Japanese Knotweed: are its days numbered? →

Are we witnessing a sea change in the Technology and Construction Court’s (TCC) approach to the enforcement of adjudicators’ decisions? Two recent TCC decisions suggest we may be. In both cases, the TCC took giant steps in developing adjudication enforcement practice. It is no coincidence that both cases were heard by Mr Justice Edwards-Stuart. The … Continue reading A sea change in adjudication enforcement? →

If you are carrying out works that are partly “construction operations” under the Construction Act 1996, and partly not, conventional wisdom has often said that it makes sense to ensure that your dispute resolution clauses and payment terms comply with the Act. While this was accepted as good practice, it remained unclear exactly how the … Continue reading Contractual adjudication using the Scheme for Construction Contracts →

Those involved in adjudication and, in particular, adjudication enforcement, will be familiar with the procedure laid out in section 9 of the TCC Guide; a procedure that developed after the Construction Act 1996 came into force in May 1998. Quite how many times this procedure has been used over the last ten years is difficult to … Continue reading TCC adjudication practice continues to develop… →

The Electronic Working Pilot Scheme has been piloted at the TCC in London since July 2009. Has it been a success? PLC Construction attended an HMCS workshop to find out.

If you successfully enforce an adjudicator’s decision in the Technology and Construction Court (TCC), you will usually recover your costs. But how much might you recover?

The Olympic Delivery Authority (ODA) has announced that more than 1,000 UK businesses have already benefited from the London 2012 Olympics, winning over £5 billion of contracts to prepare the infrastructure and venues for the games.

Earlier this summer, we reported on the pilot of Jackson LJ’s “cost management” concept in Birmingham’s Technology and Construction Court (TCC) and Mercantile Court. The pilot is part of the major review of the civil litigation costs system being undertaken by Jackson LJ.

In July 2008, the Olympic Delivery Authority (ODA) committed itself to achieving ten key milestones by 27 July 2009. (The Olympics will start on 27 July 2012.) According to its recent publication, the ODA has achieved all ten milestones ahead of schedule.

The song says “When the going gets tough, the tough get going“. In the construction industry, this means “When the going gets tough, the tough get suing”. There is no doubt that things are tough at present.

Claims are commonplace and all those involved in construction and engineering projects will be familiar with the disputes that can arise on a project.

The new Practice Direction on pre-action conduct comes into force today, 6 April 2009. Construction and engineering disputes will be affected by the new Practice Direction, which will replace the current Practice Direction on Pre-action Protocols.

The long-running Wembley litigation battle (Multiplex v Cleveland Bridge) is destined not to go away. As Construction News reported today, the Court of Appeal has given both parties permission to appeal the decision of Mr Justice Jackson, handed down at the end of September last year. (Jackson J had refused both parties’ applications for permission to appeal to … Continue reading Wembley litigation: Court of Appeal to hear both parties’ appeal →

In the New Year, the Court of Appeal handed down judgment in an obscure dispute between two homeowners and their structural engineer (Penny and Anr v Digital Structures Ltd).  While the judgment creates no new law, it highlights some practical issues relating to structural surveys.

At the moment, we are seeing three clear trends emerge in the way the Technology and Construction Court (TCC) is dealing with adjudication business, each of which is lead by one of the TCC judges:

In the first paragraph of his judgment in Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC 159 (TCC), Mr Justice Coulson remarked that: “This is an adjudication enforcement application under CPR Part 24 which raises a number of issues that are becoming a feature of these straightened times. From my particular vantage point, … Continue reading Is the industry becoming more litigious? Current trends in construction disputes →

The LDEDC Bill 2008 is part way through the four days allocated for debate in Grand Committee. By Thursday morning (29 January) we should be one step closer to knowing what amendments may be made to the Construction Act 1996. Some of the changes currently suggested are entirely inappropriate for the industry.

Sole traders and self-employed individuals are involved in most construction projects. They also have a crucial role in maintaining existing buildings. However, when a dispute arises, these individuals can prove elusive. A recent decision in the Australian courts may have the answer: Facebook.

I recently attended a seminar held by Lewis Silkin LLP on construction security, focusing on bonds and parent company guarantees. Key points arising from the seminar include:

I attended a breakfast briefing given by members of RPC‘s construction team yesterday.  In the current economic climate of downturn and uncertainty, they looked at a number of “hot topics”.

Yesterday evening I attended the above event, otherwise known as “How can ADR be improved for the construction industry?”