A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is … Continue reading Risky business: Offshore drilling and using force majeure as an exit route
A client recently called me in a panic. Their contractor had discovered a protected species of bird had set up home in the exact spot where they needed to carry out the next phase of works at one of their sites. No one on site was entirely confident on what the appropriate next steps should … Continue reading Beware – wildlife on site!
The TCC does not like blocking ongoing adjudications or interfering in their conduct. To date, it has only done so in a few unusual cases. Recently, however, it has found a good reason to prevent an adjudication from proceeding, which could be of very wide application.
Concurrent delay is something that the courts tell us is exceedingly rare. And yet, it is a subject which can occupy much time when parties are in dispute about entitlement to an extension of time. The Court of Appeal has now considered whether parties to a construction contract can decide how to apportion risk in … Continue reading Concurrent affairs: North Midland Building Ltd v Cyden Homes
Recent cases, including the Court of Appeal’s judgment in Bou-Simon v BGC Brokers LP and the (as yet unreported) case of Harrow LBC v Engie Regeneration (Apollo) Ltd (2018) (TCC), provide a useful reminder of the strict constraints on implying terms into a commercial contract. Courts can imply terms into a contract in order to … Continue reading What are you implying? The role of implied terms in contract interpretation
The trouble with collateral warranties (CWs) is that they aren’t very interesting. Construction lawyers typically overdose on them as trainees and have had enough of them by the time they qualify. A brief foray into the world of third party rights and they are ready to move on to higher things, leaving the following cohort … Continue reading Making collateral warranties interesting: the Office Depot case
1 October 2019 will see a significant shake-up of the VAT rules in the construction sector. New rules will come into force on that date which will, in many cases, require the recipient of the supply of construction services, rather than the supplier, to account for VAT on the supply. Large and small businesses making … Continue reading The reverse charge: shaking up VAT on construction services
Valuing a contractor’s work on a complex project is rarely an easy task. During the works, parties to a construction contract commonly devote significant resources to ensuring that the work is properly valued. These valuations are often carried out by people with close knowledge of the project, and under the NEC form of contract certified … Continue reading The costly business of ignoring interim assessments and agreed valuations: ICI v Merit Merrell Technology
Increasingly, the construction industry model that we know so well – based on layers of contractors and sub-contractors – is being called into question. In the last six months various failures (including Grenfell, Scottish PFI-built schools and Carillion’s collapse) have prompted questions about construction industry outsourcing and transfer of risk. Queries have been raised about … Continue reading Payment, retention and risk: shuffling the deck
The NEC contract is built on the spirit of mutual trust and co-operation. One area in which this plays out is in the context of applications for an extension of time or a change in the prices by a contractor. The project manager is required to assess these applications on a prospective or forecasted basis, … Continue reading Prospective analysis of compensation events under NEC: shutting one’s eyes and groping in the dark?
Increasingly, our clients are requesting that we incorporate provisions for modular building techniques into their construction contracts. There seems to be a real trend for including at least some aspects of “modular” into development and other projects. It is open to debate whether this is driven by improvements in design and adaptability of modular building … Continue reading The avalanche effect: key issues in modular building
Last year, I blogged on the first instance decision of the Scottish courts in SSE Generation Ltd v Hochtief Solutions AG and another. That decision has been overturned by the Inner House, Court of Session (the Scottish equivalent of the Court of Appeal) in an important judgment that sheds light on how the English courts might … Continue reading The fine line between design and implementation: scope of NEC Option X15
My colleague, Natalie Wardle, commented on the Supreme Court’s decision in Gard Marine and Energy Ltd v China National Chartering Company Ltd in her May 2017 blog. As she noted, the judgments (and the 3:2 majority verdict) left a number of questions unanswered. Two of these were: What is the strength of the implied term that … Continue reading Co-insurance and subrogation rights revisited (again!)
Recently, in the course of reviewing a proposed building contract for an employer, I had cause to consider how responsibility for obtaining planning consents had been addressed. Or rather, whether it had been addressed at all. Jean-François Clin v Walter Lilly & Co Ltd is a forceful reminder to effectively deal with this issue. The Court … Continue reading An unplanned surprise: Implied planning obligations – Clin v Walter Lilly
Coulson J’s decision in Grove Developments Ltd v S&T (UK) Ltd has triggered a great deal of commentary, including Jonathan Cope’s post, which I read with great interest. It got me thinking about what strategies an employer or contractor might adopt to counter a smash and grab adjudication, either pre-emptively or after the referral has landed.