Termination – where did it all go wrong?
Is it just me who has seen a lot of disputes regarding wrongful termination since the beginning of the COVID-19 pandemic? A large proportion of those disputes have concerned whether a party has terminated in accordance with the provisions in a JCT contract. While parties frequently attempt to exercise termination provisions under JCT contracts, very … Continue reading Termination – where did it all go wrong?
Developments following Ground Developments… or not
Writing on this blog almost exactly four years ago, David Pliener noted a potentially interesting change in the TCC’s approach to enforcing adjudicators’ decisions. In the case of Ground Developments Ltd v FCC Construction, Fraser J signalled that, perhaps, a claimant applying for summary judgment to enforce an adjudicator’s decision might not need to meet … Continue reading Developments following Ground Developments… or not
Be good, for goodness’ sake: fraud and adjudication enforcement
Christmas is on the horizon. It’s necessary, therefore, to ask who’s been naughty and who’s been nice – and how better to do that than by reflecting on the courts’ approach to fraud in adjudications? In March of this year, the Court of Appeal was faced with a relatively rare type of case: one involving … Continue reading Be good, for goodness’ sake: fraud and adjudication enforcement
Pre-referral directions: mind the gap
Here’s a situation that arose recently in an adjudication where I acted for the responding party. It is a helpful reminder of how strict the adjudication time limits are, and the restrictions upon an adjudicator’s ability to change them without agreement from both parties.
When can contractual limitation of liability clause limit third party’s tort claim?
This was the question the court was asked to answer in RSK Environmental Ltd v Hexagon Housing Association Ltd. Amidst the summer recess and the ongoing pandemic, the case may have slipped past many practitioners. However, it raised two valuable points: First, a heavy-weight legal question: can parties be bound in tort by limitation clauses … Continue reading When can contractual limitation of liability clause limit third party’s tort claim?
Enforcing an adjudicator’s decision where no order for payment
Much has been written on the Supreme Court case of Bresco v Lonsdale and it has most recently been relied on by a party in the adjudication enforcement case of WRW Construction Ltd v Datblygau Davies Developments Ltd. However, as will be discussed in this blog, it was of limited assistance.
Back to square one? Statutory interpretation versus commercial futility after Bresco v Lonsdale
Although handed down only a few days ago, practically everyone in the construction law world is already aware of the Supreme Court’s decision in Bresco Electrical Services Ltd (In Liquidation) v Michael J Lonsdale (Electrical) Ltd and the fact that it unanimously upheld the right of companies in liquidation to retain an unfettered right to … Continue reading Back to square one? Statutory interpretation versus commercial futility after Bresco v Lonsdale
Jurisdiction of the court as well as the adjudicator under scrutiny
One decision that court my eye recently is Flexidig Ltd v M&M Contractors (Europe) Ltd, mainly because it contains – as all good adjudication enforcement decisions should do – an interesting collection of attempted challenges to enforcement.
What does a court want from an expert report?
This blog post highlights points that an expert’s report should cover in order to help a court understand the issues in dispute. I focus mainly on cases concerning defective or poorly designed works but many of the principles are equally applicable to other types of expert reports in construction cases.
An appeal is not a form of gratuitous essay-marking exercise
The recent Court of Appeal judgment in Farrar v Rylatt should serve as a warning to practitioners of the uphill struggle that a party faces when attempting to appeal a trial judge’s findings of fact.
Meadowside: one small step for companies in liquidation but a giant leap forward for adjudication enforcement
Meadowside Building Developments Ltd (in liquidation) v 12-18 Hill Street Management Company Ltd provides another development in the law of adjudication (and adjudication enforcement) that places liquidators (acting on behalf of a company in liquidation) closer to being able to enforce adjudicators’ decisions.
Insolvency proceedings, guarantees and contractual pre-conditions
If you are considering commencing insolvency proceedings against another party, do ensure that they actually owe you a debt before you do so. This point is so obvious that it barely needs stating. However, Martin v McLaren Construction Ltd serves as an example of how things can go badly wrong if it is not double-checked.
A natural and ordinary default: Network Rail v ABC
Late last month, judgment was handed down in Network Rail Infrastructure v ABC Electrification Ltd. A decision of Joanna Smith QC, sitting as a deputy judge of the High Court in the TCC, Network Rail is of interest not only as an example of meticulous contractual analysis, but as a case that highlights the manner in … Continue reading A natural and ordinary default: Network Rail v ABC
(Un)signed, sealed, delivered: Anchor 2020 v Midas Construction
It is common practice for parties in the construction industry to undertake work under a letter of intent before the contract is formally executed. This practice ensures that design can be undertaken, materials can be procured, the site can be prepared and, ultimately, work can begin notwithstanding ongoing contractual negotiations. However, letters of intent often … Continue reading (Un)signed, sealed, delivered: Anchor 2020 v Midas Construction
The primacy of insolvency law over construction law
With the Court of Appeal’s decision in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd just a few weeks old, it is hardly surprising that people are looking again at the relationship between insolvency law and adjudication, noting that in cases of liquidation where parties have a cross claim, construction law defers to insolvency … Continue reading The primacy of insolvency law over construction law
Fraud, stays and adjudication enforcement following Gosvenor v Aygun
Now that some dust has settled on the Court of Appeal’s decision in Gosvenor v Aygun, it seems appropriate to consider where we are with fraud and stays in the context of adjudication enforcement.
Fitness for purpose again: beware the lack of contract terms
In Williams Tarr Construction Ltd v Anthony Roylance Ltd and another, the TCC considered a construction company’s breach of contract and breach of warranty claim against an engineer for the defective design of a retaining wall.
After Makdessi and GPP, the question is, are your LDs commercially viable?
Liquidated damages (LD) clauses are a fixture of construction contracts. As we all know, they are a secondary obligations to pay an agreed sum of money, arising upon breach of a primary obligation of the contract. In the case of a construction contract, this will invariably be in the event of delay: the failure to … Continue reading After Makdessi and GPP, the question is, are your LDs commercially viable?
What’s the damage? Revisiting the correct measure of loss in negligent surveyor cases
As construction lawyers, most of us have had experience with claims concerning the financial loss and/or damage to property arising from a negligent survey of a house. The facts of such cases tend to follow a pattern: Prospective purchasers instruct a surveyor to produce a report before deciding whether to buy a particular property. The … Continue reading What’s the damage? Revisiting the correct measure of loss in negligent surveyor cases
Losing out on loss of bargain when terminating in reliance upon contractual rights
In the wake of the Carillion insolvency, many sub-contractors are likely to be investigating their rights to terminate their contracts with a now defunct main contractor. Looking for a clean break, they may be tempted by the explicit termination rights that standard form building contracts often contain, and that may be deployed in the event … Continue reading Losing out on loss of bargain when terminating in reliance upon contractual rights
Can God create a stone s/he cannot lift?
Since at least medieval times, philosophers have struggled with what has become known as the “omnipotence paradox“: “If God is all powerful, can s/he create a stone so heavy s/he cannot lift it?” Thomas Aquinas and Rene Descartes, among others, would no doubt be relieved to know that the English Supreme Court has now resolved … Continue reading Can God create a stone s/he cannot lift?
Are you being served (electronically)? Email service under the CPR and the Party Wall Act 1996
Two recent cases, one in the Court of Appeal, the other in the Supreme Court, have created significant uncertainty around the acceptability of email service. It seems that there may now be a disparity between the CPR and the Party Wall Act 1996, despite the similarities in the wording of the relevant provisions for the … Continue reading Are you being served (electronically)? Email service under the CPR and the Party Wall Act 1996
Bring it on… bring it all on! The risky strategy of leaving over arguments for another day in serial adjudications
One of the fears relating to adjudication is that a referring party will attempt to achieve success by grinding the responding party down through serial adjudications until it achieves the result it wants or the responding party gives in. In Benfield Construction Ltd v Trudson (Hatton) Ltd, Coulson J issued a clear warning that such … Continue reading Bring it on… bring it all on! The risky strategy of leaving over arguments for another day in serial adjudications
When silence is deafening: adverse inferences in relation to absent witnesses
Staff turnover in the construction industry can be particularly high and finding the right person to give evidence on all issues in a case can sometimes be difficult. Parties are often suspicious when they know there is someone who should be able to give evidence for their opponent, but whom their opponent does not plan … Continue reading When silence is deafening: adverse inferences in relation to absent witnesses
Contributory negligence and construction contracts
A plethora of issues were raised, and disposed of, by Fraser J’s recently handed-down judgment in Riva Properties and others v Foster + Partners Ltd, the most awkwardly entertaining one being the sense of pantomime arising from the court’s clear disapproval of the architect’s behaviour, which was described at various stages as “grubby”, “disingenuous” and “wholly … Continue reading Contributory negligence and construction contracts
Ten-day delay in filing cost budget was serious but so what!
Much has been written about the court’s discretion to grant relief from sanctions pursuant to CPR 3.9 over recent years, due to the re-formulation of the rule in April 2013 and the landmark Court of Appeal decision in Mitchell v News Group Newspapers Ltd. The strictness of the approach in Mitchell led to an outcry … Continue reading Ten-day delay in filing cost budget was serious but so what!
Revisiting reasonable skill and care: have construction professionals lost Bolam protection without even noticing?
In recent years there has been increasing interest as to whether construction professionals need to produce an end design that is fit for purpose or simply to show that they exercised reasonable skill and care. The Court of Appeal’s decision to overturn the first instance judgment in MT Hojgaard v Eon (and the first instance decision … Continue reading Revisiting reasonable skill and care: have construction professionals lost Bolam protection without even noticing?
Issues highlighted by GB Building Ltd v SFS Fire Services Ltd
Practical completion is a key concept in any construction project. It has a significant impact on a party’s rights and obligations, and represents a major milestone in the overall project timetable. Under the majority of construction projects, it marks the point at which the clock starts running for the overall transfer of risk from the … Continue reading Issues highlighted by GB Building Ltd v SFS Fire Services Ltd
Disclosure and production in construction cases
The evolution of the CPR in the wake of the Jackson reforms included the well-known introduction of the “menu” of disclosure options at CPR 31.5(7). The net effect was to promote, as appropriate and applicable, a movement away from well-established “standard” disclosure to a more tailored approach. With the accompanying provisions of CPR 31 and … Continue reading Disclosure and production in construction cases
The more things change, the more they stay the same
Every time we think the courts might have given defendants in adjudication enforcement proceedings slightly more latitude in raising their dissatisfaction with an adjudicator’s decision, the court brings us back down to earth with a bump and reminds us that, in fact, no matter how hard done by our clients feel, they will have to … Continue reading The more things change, the more they stay the same
Adjudicator had jurisdiction because rights were re-assigned in the nick of time
In Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd, the TCC confirmed the armoured quality of an adjudicator’s decision, despite a valiant jurisdictional challenge. The enforcement action was set against a zigzagging tale of assignment and re-assignment…
Time waits for no man: an important decision on delays in construction contracts
The Court of Appeal’s judgment in Carillion Construction Ltd v Emcor Engineering Services Ltd and another is an important decision concerning a standard form construction contract, the JCT Domestic Sub-Contract (known as DOM/2). The court confirmed an earlier TCC decision that delays can only be calculated by extending the period of time allowed for practical completion, not by creating … Continue reading Time waits for no man: an important decision on delays in construction contracts
Paying your fair share: when can an adjudicator decide more than the notified sum must be paid?
Kersfield Developments (Bridge Road) Ltd v Bray & Slaughter Ltd is the latest authority in a line of cases providing guidance on interim payments in construction contracts under the Construction Act 1996. While a wide number of arguments were deployed in the case, perhaps the most interesting point for construction practitioners is that it offered the first … Continue reading Paying your fair share: when can an adjudicator decide more than the notified sum must be paid?
Is the TCC’s approach to summary judgment in adjudication enforcement changing?
As we are all in the process of opening our annual referral notice Christmas presents, I thought you might welcome a brief distraction by considering whether anyone will be able to enforce the pending decision in the New Year. Perhaps surprisingly, 2016 has seen some developments on this front that practitioners need to bear in … Continue reading Is the TCC’s approach to summary judgment in adjudication enforcement changing?
Time to party (over that wall) like its 1996
As the incredible rise of our transatlantic wall-building friend sets gently into the twilight of credulity, it provides us with an opportunity to get back to reality with the Party Wall etc. Act 1996 (PWA 1996). The PWA 1996 remains something of an unusual beast. For an Act that features so heavily in a construction … Continue reading Time to party (over that wall) like its 1996
Will the new Protocol for Construction and Engineering Disputes save time and cost?
The genesis of the new Protocol for Construction and Engineering Disputes, which came into effect today, was widespread concern regarding the front-loading of costs. It is this concern that has led to the introduction of a quicker, less detailed and more proportionate Protocol procedure.
Beware the dangers of uncertainty with letters of intent
Alexander Nissen QC’s recent decision in Spartafield Ltd v Penten Group Ltd brings a degree of finality to the long-running dispute between these two parties. It comes after multiple adjudications and previous proceedings in the TCC. Back in March, my colleague Ebony Alleyne discussed what was then the most recent judgment, dealing with the enforcement … Continue reading Beware the dangers of uncertainty with letters of intent
Going nuclear: Britain’s big bet on Hinkley Point
On 29 September 2016, at a private low-key ceremony in London, representatives from three of the world’s most powerful nations (France, China and the UK) met in order to sign a historic energy agreement. The goal: to build Britain’s first nuclear power plant in a generation. When completed in 2025 (if all goes to plan), … Continue reading Going nuclear: Britain’s big bet on Hinkley Point
Navigating the minefield of expert determination
Stephen Furst QC’s judgment in ZVI Construction Co LLC v University of Notre Dame (USA) in England is a recent TCC case that highlights important issues arising from expert determination clauses.
No green light to making exaggerated insurance claims but “gilding the lily” may be okay
With the Insurance Act 2015 set to come into force within the next two weeks, contractors will be turning their attention towards the new provisions to clarify their legal obligations under policies incepted after 12 August 2016. In anticipation of these significant and wide-ranging reforms to insurance contract law, the courts have begun the task … Continue reading No green light to making exaggerated insurance claims but “gilding the lily” may be okay
Common sense is over-rated
At first glance, Carillion Construction Ltd v Woods Bagot Europe Ltd and others appears to be important because it touches on a common issue in delay and disruption claims of how an extension of time is to be awarded. However, on closer inspection the case is not really about delay and disruption. It is merely another … Continue reading Common sense is over-rated
An (e)stopped clock is right twice a day. Is your engineer’s conduct a ticking time bomb?
As the deluge of smash and grab adjudications continues to percolate through the construction industry, shrewd contractors are advancing more and more creative legal submissions as a way of reviving interim payment applications that have somewhere gone awry. Twice in the past year, the TCC has been addressed on the issue of whether a contractor can … Continue reading An (e)stopped clock is right twice a day. Is your engineer’s conduct a ticking time bomb?
Know what you are dealing with: lessons learned from Murphy v Beckton
Carr J’s judgment in J Murphy & Sons Ltd v Beckton Energy Ltd offers a salutary reminder of the dangers that can befall a contractor when dealing with an unfamiliar amended contract. Not getting to grips with the operation of amended clauses, and the interplay between them, can be a trap for the unwary, as J Murphy … Continue reading Know what you are dealing with: lessons learned from Murphy v Beckton
“What are you referring to…?” The increased latitude required when considering adjudicators’ jurisdiction
With both the US and London mayoral elections gaining momentum, and leading commentators poised to offer independent research, enlivened views and sage analysis, you really would be forgiven for not having had your eyes trained on recent enforcement action in the TCC. The judgment in Penten Group Ltd v Spartafield Ltd, is therefore one you might have missed (but … Continue reading “What are you referring to…?” The increased latitude required when considering adjudicators’ jurisdiction
Is the civil courts structure review the end for the TCC?
It’s just possible that, what with keeping up on the recent spate of adjudication enforcement decisions, and wondering whether Brexit would mean that English clubs can’t compete in Europe, you might have missed the fact that Briggs LJ is in the middle of conducting a comprehensive review of the civil courts structure (and the interim report … Continue reading Is the civil courts structure review the end for the TCC?
Pay less notices under the Construction Act 1996
As I predicted in my blog post two weeks ago, the TCC has now been addressed on the argument that an out of time payment notice can stand as a valid pay less notice under the provisions of the Construction Act 1996. In Grove Developments Ltd v Balfour Beatty Regional Construction Ltd, Grove sought (in the alternative), a … Continue reading Pay less notices under the Construction Act 1996
Henia v Beck: time for a rethink?
Google the decision in Henia Investments Inc v Beck Interiors Ltd and you will find a raft of articles championing the decision as adding yet further weight to the argument that payment applications submitted by the “payee” must be clear and unambiguous. However, what is noticeably absent from the commentary is any discussion regarding the … Continue reading Henia v Beck: time for a rethink?
The new stomping ground: validity of payment applications
Since the consequences of failing to serve a valid and timely payment notice or pay less notice can be severe (see ISG Construction Ltd v Seevic College), it perhaps should come as no surprise that in recent cases, there has been increasing attention on the validity of the application for payment because, without this, there … Continue reading The new stomping ground: validity of payment applications
It means what it says on the tin: contract interpretation in a post-Arnold v Britton world
For a number of years it seemed as if the law had gone soft in its old age. It began by telling us that, when construing the terms of a contract, we shouldn’t allow the literal words to mask the true objective intention. As Lord Steyn said (in Sirius International v FAI): “[T]he tyrant Temures … Continue reading It means what it says on the tin: contract interpretation in a post-Arnold v Britton world
The current status of the complex structure theory
Nearly a quarter of a century has passed since Lord Bridge’s discussion of the complex structure theory in Murphy v Brentwood. One might have reasonably expected that in the years that have passed, the position of the complex structure theory in English tort law would have finally been settled upon. However, this has not been … Continue reading The current status of the complex structure theory
“Fair presentation of risk” and the Insurance Act 2015: what does it mean for the construction industry?
The Insurance Act 2015, which does not come into force until August 2016, changes the way in which insurance is conducted. The delay in commencement of the Act is intended, at least in part, to give insurers time to change their policy wording and procedures. It is likely that some of the new policy wordings … Continue reading “Fair presentation of risk” and the Insurance Act 2015: what does it mean for the construction industry?
Avoiding a blind alley: proving causation in an uncertain world
The Court of Appeal (in Graves v Brouwer) has taken the opportunity to re-visit the vexed question of how you should go about proving causation where there are a series of possible causes and, perhaps more importantly, how you shouldn’t do it. Anyone faced with a fire claim would do well to take heed. The … Continue reading Avoiding a blind alley: proving causation in an uncertain world