REUTERS | Kai Pfaffenbach

Christmas quiz 2016

Our festive quiz is back again, so take some time off from that ambush adjudication and have some fun. 

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

Question 1 (liability for gratuitous advice)

Construction professionals often help friends who are having some work done, but could you be putting yourself at risk by offering guidance over a glass of festive mulled wine?

Which of the following is true? (One or more statements may be correct.)

(a) As long as you don’t enter into a contract/appointment, you can’t be liable.

(b) A professional designer in the construction sector can owe a duty of care in tort, which imposes liability for pure economic loss.

(c) If it exists, a professional’s liability for pure economic loss covers only advice given, not other services that are performed, such as inspecting the execution of works by a contractor.

(d) You should always refuse a friend’s request for advice.

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

Question 2 (varying a contract)

After months of negotiation, you finally execute your building contract in time for the Christmas holidays. You don’t want to risk it being changed without serious thought, so it includes a clause requiring any amendment to be in writing.

Does that prevent the parties agreeing an oral variation to their contract while you are enjoying your Christmas dinner?

(a) Oh no it doesn’t.

(b) Oh yes it does.

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

Question 3 (arbitrator impartiality)

You are referring a dispute to arbitration, because you don’t mind working over Christmas. Obviously, you want an unbiased arbitrator. In Cofely Ltd v Bingham and another [2016] EWHC 240 (Comm) the court exercised its power under section 24 of the Arbitration Act 1996, which allows the court to remove an arbitrator in circumstances that give rise to justifiable doubts as to their impartiality.

Which of these grounds did the court accept cumulatively gave rise to a real possibility of bias? (One or more statements may be correct.)

(a) The fact that the other party’s representatives favoured using this arbitrator and tried to exclude other arbitrators from being nominated without legitimate reasons. (This fact had been revealed by Ramsey J’s earlier judgment in Eurocom Ltd v Siemens plc [2014] EWHC 3710 (TCC), in relation to potential adjudicators.)

(b) The arbitrator’s response to requests for information was evasive, defensive and unjustified.

(c) The arbitrator’s defensive and hostile stance when he convened a hearing.

(d) The fact that the arbitrator had acted so frequently as an arbitrator or adjudicator in cases where the other party’s representatives were involved.

(e) The arbitrator’s aggressive and unapologetic witness statement opposing the section 24 application.

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

Question 4 (interim payments)

You are building a new grotto for Santa. The work is expected to take ten months, ending in time for Christmas. You don’t trust Santa, so you insist that your building contract includes a detailed payment schedule setting out the precise dates that are relevant to the payment mechanism for each month, ending in December.

Which of these is true? (One or more statements may be correct or incorrect.)

(a) There is no point setting out interim payment dates beyond December. After all, the grotto will be complete by then.

(b) If the work does continue into next year, you will still be able to claim monthly interim payments. That is an implied term of the contract.

(c) If the work does continue into next year, this payment mechanism does not comply with the requirements of section 109 of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996). Therefore the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649) (Scheme for Construction Contracts 1998) will apply and confer a statutory right on you to claim monthly interim payments from January 2017 until practical completion.

(d) You will not be able to claim any interim payments if the work continues after the end of December and must wait until the final payment date for any further payment.

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

Question 5 (Brexit)

You can’t decide whether Brexit will make your Christmas better or worse, but you’d like to be armed with some facts when, inevitably, someone starts an argument about it over the Christmas pudding.

Which construction-related legislation owes its existence to the UK’s membership of the EU? (It may be more than one.)

(a) The Construction (Design and Management) Regulations (SI 2015/51).

(b) The Construction Products Regulations 2013 (SI 2013/1387).

(c) The Party Wall etc. Act 1996.

(d) Late Payment of Commercial Debts (Interest) Act 1998.

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

Question 6 (extensions of time)

You really admire how Santa delivers all those presents on time every year. If only construction projects were so reliable.

Which of these statements is true, unless the contract provides otherwise?

(a) An extension of time will always be added contiguously to the previous date for completion, not discontinuously in discrete periods of time. This applies even if the contractor is in culpable delay when the event triggering the extension of time occurs.

(b) An extension of time will usually be added contiguously to the previous date for completion, not discontinuously in discrete periods of time. However, this does not apply where the contractor is in culpable delay when the event triggering the extension of time occurs. In these circumstances any extension of time will be added as a discrete period.

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

Question 7 (deletions from a contract)

You are negotiating a contract late on Christmas eve and agree one last deletion from its wording. You make the amendment by striking through the wording of the standard form contract that the parties have agreed to delete.

Which of these is true? (One or more statement may be correct.)

(a) A court can never have recourse to deleted or omitted wording when interpreting a contract.

(b) A court can refer to deleted words in a printed, standard form to resolve the ambiguity of a neighbouring paragraph that remains.

(c) A court can refer to deleted words to resolve ambiguity even if no printed form is involved.

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

Question 8 (concurrent delay)

Which of the following statements about concurrent delay are true? (One or more statement may be correct.)

(a) Concurrent delay, in the context of construction and engineering projects, is a period of delay that is caused by two events, one the contractor’s contractual responsibility and one the employer’s contractual responsibility. It is unnecessary for the events causative of delay to occur simultaneously, but the consequences of the two events must be felt at the same time.

(b) Concurrent delay, in the context of construction and engineering projects, is a period of delay that is caused by two events, one the contractor’s contractual responsibility and one the employer’s contractual responsibility and both the events causative of delay occur simultaneously and the consequences of the two events are felt at the same time.

(c) Concurrent delay, in the context of construction and engineering projects, is a period of delay that is caused by two or more effective causes of delay which are of approximately equal causative potency.

(d) In cases of concurrent delay the contractor is entitled to an extension of time but is not entitled to recover any time-related costs.

(e) On the first day of Christmas my true love gave to me, two turtle doves.

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

Question 9 (adjudication)

In mid-December you receive multiple referrals to adjudication under the Scheme for Construction Contracts 1998, all relating to the same construction contract. Some Grinch is trying to steal your Christmas! But has the Grinch slipped up with his choice of adjudicator?

Which of the following is true? (One or more statement may be correct.)

(a) You can refer the same dispute to different adjudicators.

(b) You can refer different disputes to the same adjudicator at the same time.

(c) You can refer different disputes to the same adjudicator, as long as you don’t do it at the same time.

(d) You can refer different disputes to different adjudicators at the same time.

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

How did you do?

None correct: Patent defect.
1-4 correct: Latent defect.
5-8 correct: Temporary disconformity.
9 out of 9: Stirling Prize nomination!

Practical Law Yassir Mahmood

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