REUTERS | Mike Blake

Christmas quiz 2011

Do you know your Tolent clause from your Santa Claus? Then why not test your knowledge of construction law? Berwin Leighton Paisner’s Christmas quiz is back and as challenging as ever.

For answers to all the questions, see our answers document.

Construction Act 1996

Question 1

Which of the following statements is true (there may be more than one)?

(a) The statutory right to refer a dispute to adjudication under the Construction Act 1996 (as amended) only arises where the construction contract is in writing.

(b) The statutory right to refer a dispute to adjudication under the Construction Act 1996 (as amended) applies to all construction contracts whether wholly in writing, partly in writing or wholly oral.

(c) The statutory right to refer a dispute to adjudication under the Construction Act 1996 (as amended) applies to all construction contracts whether wholly in writing, partly in writing or wholly oral provided that the adjudication provisions are in writing.

(d) The statutory right to refer a dispute to adjudication under the Construction Act 1996 (as amended) applies to all construction contracts whether wholly in writing, partly in writing or wholly oral, however, where the contract is wholly oral, the adjudication provisions of the Scheme for Construction Contracts 1998 will apply.

For the answer to question 1, see our answers document.

Question 2

Which of the following statements is true (there may be more than one)?

(a) Third parties may give section 110A payment notices.

(b) The due date for payment can be fixed by reference to the payer’s payment notice.

(c) The payer is not obliged to give a “pay less notice” if the payee goes insolvent before the date upon which the payer is required to give such pay less notice.

For the answer to question 2, see our answers document.

Question 3

Which of the following statements is true? The Constructions Contracts (England) Exclusion Order 2011 provides that:

(a) All PFI sub-contracts (of any tier) are excluded from the operation of the Construction Act 1996 (as amended).

(b) Only first-tier PFI subcontracts are excluded from the operation of the Construction Act 1996 (as amended).

(c) All PFI sub-contracts (of any tier) are excluded from the operation of section 110(1A) of the Construction Act 1996 (as amended).

(d) Only first-tier PFI subcontracts are excluded from the operation of section 110(1A) of the Construction Act 1996 (as amended).

For the answer to question 3, see our answers document.

Dispute resolution procedures

Question 4

Under which one of the following adjudication rules may an adjudicator determine his own jurisdiction?

(a) The Scheme.

(b) TeCSA.

(c) CEDR.

(d) ICE.

For the answer to question 4, see our answers document.

Question 5

Which of the following are usually considered to be grounds for challenge in the case of expert determination?

(a) Gross/manifest error.

(b) Procedural irregularity.

(c) Fraud.

(d) Failure to give reasons.

For the answer to question 5, see our answers document.

Question 6

Which of the following provisions of the Arbitration Act 1996 can the parties agree shall not apply?

(a) Section 24 (power of court to remove arbitrator).

(b) Section 67 (challenging the award: substantive jurisdiction).

(c) Section 68 (challenging the award: serious irregularity).

(d) Section 69 (appeal on point of law).

For the answer to question 6, see our answers document.

Question 7

Your construction contract contains a tiered dispute resolution clause providing that when a dispute arises it must first be referred to the CEO of each party to try and reach an amicable resolution. Failing this the dispute may be referred to adjudication (the adjudication provision contains all of the mandatory requirements of the Construction Act 1996 (as amended)). A dispute has arisen – what is your advice to the client?

(a) The dispute must be referred to the CEOs first as this is what the contract says.

(b) The dispute can be referred to adjudication immediately and the contractual adjudication procedure will apply as it is Act-compliant.

(c) The dispute can be referred to adjudication immediately and the Scheme for Construction Contracts 1998 will apply.

(d) Something else entirely.

For the answer to question 7, see our answers document.

Liquidated damages

Question 8

The cost to an employer of mitigating the effects of a delay caused by a contractor breaching its obligations under the contract (for example, by negligently causing a fire) would not, in principle, fall within the scope of the liquidated damages clause. The employer retains a right to recover such losses under the first limb of Hadley v Baxendale. True or false?

For the answer to question 8, see our answers document.

Design liability/professional negligence

Question 9

Which of the following statements about design liability is true?

(a) The common law imposes on a professional person and a design and build contractor the same standard, that is, a standard of reasonable skill and care.

(b) The Supply of Goods and Services Act 1982 (as amended by the Sale and Supply of Goods Act 1994) provides that in a contract for the supply of a service where the supplier is acting in the course of a business, there is an implied term that the supplier will carry out the service with reasonable care and skill.

(c) Professional persons cannot delegate their design duty to third parties in any circumstances.

(d) A provision in a professional appointment which seeks to impose an absolute obligation on a professional person is unenforceable.

For the answer to question 9, see our answers document.

Question 10

Which of the following statements is true about an unamended JCT Design and Build Contract, 2011 edition (there may be more than one)?

(a) The Contractor’s design liability is absolute: he warrants that the Works, when complete, will achieve specific results set out in the contract.

(b) The Contractor’s design liability is one of reasonable skill and care only.

(c) The Contractor has no responsibility for any design contained in the Employer’s Requirements.

(d) The Contractor is responsible for any mistake or inaccuracy in the design of the Works and for any discrepancy or divergence between the Employer’s Requirements and the Contractor’s Proposals.

For the answer to question 10, see our answers document.

Practical completion

Question 11

Which of the following statements is true (there may be more that one)? “Practical completion” should be certified:

(a) When the work to be done under the contract is complete in all respects and all patent and latent defects have been remedied.

(b) When the work to be done under the contract is complete in all respects, including any de minimis items, and all patent defects have been remedied.

(c) When the work to be done under the contract is complete in all respects apart from de minimis work and all patent defects have been remedied.

(d) In an unamended JCT 2011, when the Works are complete, the conditions precedent have been satisfied and there are no apparent defects.

For the answer to question 11, see our answers document.

Question 12

Which of the following statements is true (there may be more than one)? Under a JCT 2011 edition contract:

(a) If the Employer makes early use of the works practical completion is deemed to have occurred.

(b) If the Employer uses all of the Works for the purpose for which they were intended prior to the issue of the Practical Completion Certificate, practical completion is deemed to have occurred.

(c) If the Employer takes possession of part of the Works prior to the issue of the Practical Completion Certificate, practical completion is deemed to have occurred for that relevant part.

(d) If the Employer takes possession of the whole of the works prior to the issue of the Practical Completion Certificate, practical completion is deemed to have occurred for the whole of the Works.

(e) Exclusive possession is not a determining factor in deciding whether practical completion is deemed to have occurred.

For the answer to question 12, see our answers document.

Termination

Question 13

True or false? It is possible for silence to constitute acceptance of a repudiatory breach.

For the answers to question 13, see our answers document.

Question 14

True or false? A party which terminates a contract for breach under a contractual provision thereby waives any right that he might have to accept a repudiatory breach.

For the answer to question 14, see our answers document.

Question 15

True or false? A party which serves a contractual notice to terminate too early because it has mistakenly calculated the notice period is treated as having repudiated the contract.

For the answer to question 15, see our answers document.

Standard form contracts: IChemE

Question 16

Like FIDIC, IChemE has a rainbow suite of contracts. Which is the odd one out?

(a) Green.

(b) Brown.

(c) Orange.

(d) Red.

(e) Blue.

(f) Burgundy.

(g) Yellow.

(h) Pink.

For the answer to question 16, see our answers document.

Question 17

Which of the following statements about defects/final certificate are true (there may be more than one)?

(a) The defects liability period is 18 months from Takeover.

(b) The final certificate is conclusive evidence that the Plant is free from defects.

(c) The contractor’s liability for the cost of making good defects is capped.

(d) The contractor is not obliged to make good defects notified pre-Takeover as a condition precedent to the issue of the Final Certificate.

For the answer to question 17, see our answers document.

Question 18

Completion milestones: which of the following statements are false (there may be more than one)?

(a) Completion of construction certifies that the Plant is substantially complete and can be operated safely.

(b) Performance tests are carried out prior to Takeover.

(c) Performance liquidated damages are payable if the performance guarantees are not achieved.

(d) The Acceptance Certificate is issued at the expiry of the Defects Liability Period.

For the answer to question 18, see our answers document.

Sustainability

Question 19

When does the government anticipate that all new non-domestic buildings will be zero carbon?

(a) 2012.

(b) 2015.

(c) 2019.

(d) 2022.

For the answer to question 19, see our answers document.

Question 20

What type of buildings currently need to have Display Energy Certificates?

(a) Any buildings occupied by public authorities.

(b) Any larger buildings occupied by public authorities and frequently visited by the public.

(c) Any buildings frequently visited by the public.

(d) Any larger buildings frequently visited by the public.

For the answer to question 20, see our answers document.

Question 21

When will the Energy Performance of Buildings Directive 2010 take effect in the UK?

(a) 2012.

(b) 2015.

(c) 2019.

(d) 2022.

For the answer to question 21, see our answers document.

Question 22

When is it anticipated that the Code for Sustainable Buildings will be introduced?

(a) 2012.

(b) 2015.

(c) 2019.

(d) No date fixed.

For the answer to question 22, see our answers document.

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