Posts from 39 Essex Chambers

When the boat comes in: when making a windfall profit does not count as mitigation

The Supreme Court handed down its judgment in Globalia Business Travel SAU (formerly Travelplan SAU) v Fulton Shipping Inc of Panama on 28 June 2017. It brings to an end an extraordinary saga. The parties had entered a charter party of a vessel owned by Fulton. There was a dispute and the charterer redelivered the … Continue reading When the boat comes in: when making a windfall profit does not count as mitigation

Sutton v Rydon, a triumph of common sense

The Court of Appeal’s judgment in Sutton Housing Partnership v Rydon Maintenance Ltd has the quality that I value most in any judgment: it is a triumph of common sense.

Oops! Sent out the wrong attachments to the contract? A helpful reminder of when you can claim rectification

Commercial and construction contracts can be complex and fairly voluminous and the documents forming the contract can often run to a number of files, or more. During the tendering process, various documents often pass backwards and forwards between the negotiating parties and it is very common for multiple versions of the same document to be … Continue reading Oops! Sent out the wrong attachments to the contract? A helpful reminder of when you can claim rectification

Are oral variations worth the paper they aren’t written on?

The recent decision in Zvi Construction Co LLC v Notre Dame University (USA) in England has been commented on in terms of its decision on expert determination. However, there is more to that case. A key issue turned on the reliance that could be placed on a clause that prevented any variation (or waiver) of the … Continue reading Are oral variations worth the paper they aren’t written on?

But what about my adjudication costs?

Despite the relatively short timetables applied in adjudications, adjudication costs can still be substantial. Significantly, in the absence of an effective agreement to the contrary, the Construction Act 1996 is silent on the issue and makes no provision for the recovery of adjudication costs. Unsurprisingly, and perhaps because adjudication costs bills can become rather huge, over … Continue reading But what about my adjudication costs?

Preliminary issues: test and testiness in the TCC

“Preliminary Issues” can be such a useful way of resolving disputes that the TCC Guide specifically deals with them in section 8. Further, there are plenty of TCC cases in which preliminary issues have been ordered. Therefore, there is a good deal of guidance as to the correct test to apply in deciding whether it … Continue reading Preliminary issues: test and testiness in the TCC