Practical Law

In Pegasus v Ernst & Young the advice from Mr Justice Mann was that: “Whatever the metaphysician may say, the law says that the loss flowing can and should still be treated as a loss of the assignor which the assignee can recover. Black holes are to be (as all black holes should be) avoided … Continue reading The black holes of no loss arguments →

Less than two years ago, the government published the Construction Playbook, a comprehensive and quite visionary plan for changing the delivery of construction projects in order to “get it right from the start”. If you haven’t looked at it so far, it is worth reading. It sets out what are transformational principles and policies, designed … Continue reading The updated Construction Playbook: what’s new? →

There is no doubt that technology has been and will continue to transform construction. Technology is a wide term, but it is enough to mention concepts such as BIM and Digital Twins or look at the emphasis on modern methods of construction (MMC) in the Construction Playbook to get a feel for where construction is … Continue reading Procuring tech for construction →

Getting the notice right is important for all construction contracts and NEC is no exception. Failing to issue a notice as required under the contract can have serious consequences and in NEC this is often an issue that arises in relation to the obligation to notify compensation events within an eight week period (clause 61.3 … Continue reading NEC and notices of dissatisfaction →

Here we go again. Good faith is a concept that some lawyers do not like but industry people don’t seem to have a problem with, which is highlighted by the widespread use of the NEC form of contract. I first blogged on good faith and NEC3 in 2014, looking at what clause 10.1 is for … Continue reading Good faith, NEC clauses 10.1 (and 10.2) and aspirations →

“I’m going to make him an offer he can’t refuse”, was Vito Corleone’s favourite negotiating tactic. While his methods are a far cry from how things are done in the construction industry, commercial pressure can be used to force a party to accept an unfavourable deal. When does such behaviour cross the line and become … Continue reading Hobson’s choice, the latest on economic duress →

The JCT Dispute Adjudication Board Documentation 2021 (JCT DAB) has now been published, for use with the 2016 Design and Build Contract (DB) and the Major Project Construction Contract (MP). But, before we look at how it will operate, it is worth stepping back and looking at what dispute boards are meant to do and … Continue reading Are DABs the new adjudication? →

As recently discussed, contract interpretation is, relatively, easy when the words are very clear. But once a potential ambiguity is identified, it becomes necessary to look at what makes commercial sense, as well as what has been described as the factual background, or the “matrix of fact” referred to in Prenn v Simmonds. More recently, … Continue reading The subjective objective theory of contract interpretation and google →

The dust is slowly settling over the arguments about how contracts should be interpreted. We know that “this is not a literalist exercise focused solely on a parsing of the wording of the particular clause” and that “[t]extualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual … Continue reading Contract interpretation – who has commercial common sense? →