Practical Law

In June 2014, I wrote about clause 10.1 of the NEC form and how it was applied in Northern Ireland Housing Executive v Healthy Buildings. Clause 10.1 and good faith in general are increasingly a feature of judgments handed down by the courts. So where are we now?

Some of you may recall poor Mr Babb the surveyor who, in 2001, ended up with personal liability for a valuation he prepared when his employer went bust (Merrett v Babb). Fast forward to 2014 and Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd and others, where Sainsbury’s tried to run the same argument when it claimed … Continue reading Personal liability, contractual liability, tortious liability: what’s the difference? →

Whether core clause 10.1 of the NEC3 suite of contracts serves any practical purpose or is merely aspirational is a debate many enjoy having. The latest decision of Northern Ireland’s Court of Appeal in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd suggests one possible use is as an aid to interpretation.

The times they are a-changin’… It was almost 20 years ago that Sir Michael Latham called on the construction industry to change its ways and embrace collaborative working (Constructing the Team, 1994). We know these things take time but are we now finally facing the dawning of the age of Latham? It is clear that … Continue reading Collaboration and alliancing: changing times →

I wrote last time about Mid Essex Hospital Services v Compass Group (trading as Medirest). Others have commented about the case and how the Court Appeal interpreted the good faith clause. What has received less attention was the emphasis on punctuation and how that, and an imaginary caesura (see below), was the basis for the decision.

In January this year, I wrote about Compass Group (trading as Medirest) v Mid Essex Hospital where the High Court enforced a good faith clause and criticised a party’s conduct (involving a £84,450 chocolate mousse deduction). Having suggested that the courts are now more open to such arguments, the Court of Appeal reversed the decision … Continue reading Good faith: the Court of Appeal strikes back →

In 1992, the House of Lords said that a contractual obligation to exercise good faith was “…inherently repugnant to the adversarial position of the parties when involved in negotiations… [which] is unworkable in practice…” (Walford v Miles 1992 AC 128). It refused to imply such an obligation during pre-contract negotiations. 20 years later, has anything changed?

Sorry, there is no such app (yet) but we can’t be far off since Money Claims Online does very much the same job. It may sound like a dodgy ambulance-chasing outfit but it is a legitimate service provided by HM Court Service.

The question is, “Is adjudication a collaborative tool that can be used to avoid disputes?”. Crossing collaboration with adjudication is a bit like crossing a labrador with a poodle. Some people will like the results, others will not. One of the risks in writing a blog is that anything you write will be used against you in … Continue reading The answer is collaboradjudication →

In my last post I discussed what you do when you receive an offer which is too good to be true. But what if the contract terms are too good to be true. Can you take advantage? The Court of Appeal seems to be saying that it all depends on how you behave… …while ING … Continue reading Honesty is the best policy part 2: the spreadsheet with the wrong result →

Desperate times may call for desperate measures, but think carefully before you cross the line. There is a temptation to do what is necessary to secure the deal, but make sure what you say is accurate.

In Jones v Kaney, the Supreme Court changed the law and abolished the rule that gave experts immunity from being sued. Why did the Supreme Court change a rule that had existed for over 400 years? Are we now expecting a flood of claims against experts by the “aggressive clients” Lord Hope referred to?

Construction lawyers and construction companies now seem to take it for granted that construction contracts have to be regulated, without the freedom to contract other industries enjoy. Should that always be the case?

Trying to understand what the words in a contract mean is what we do every day. Lord Goff said that: “In point of fact, if not the meat and drink, then at least the staple diet, of the Commercial Court can be summed up in one word – ‘construction’. Commercial lawyers, Solicitors, Barristers and Judges … Continue reading Not again, the staple diet of construction →

When I teach the RICS training for expert witnesses, the room always goes silent when I ask whether expert witnesses should be sued if they are negligent. I then say that, unlike barristers or solicitors, they are immune from such claims. Expert immunity may be a thing of the past if the Supreme Court upholds … Continue reading My claim has failed. Can I sue the expert? →

In December last year I was granted the unique opportunity to take part in an adjudication, which took place in 2014, sometime after the amendments to the Construction Act 1996 had come into force. My expert witness, Gary Peters, relied on the “Fagin formula” for loss and expense, while the two main witnesses, Martin Potter … Continue reading Time travel – adjudication under the amended Act →

Here’s one way to simplify adjudication: get the adjudicator to act as an expert, let him do what he does best, avoid a mini arbitration and many of the legal challenges to adjudication…