Posts from Herbert Smith Freehills LLP

The right extension

There has been some controversy over the decision of the Court of Appeal in Carillion v Emcor in February. The case broke new ground in that it was contended (apparently for the first time) that an extension of time clause could result in a non-contiguous extension of time being granted. This phrase refers to an … Continue reading The right extension

A case of whodunnit for Sherlock Holmes

The case of Palmer v Nightingale (decided by the TCC in November and published on Bailii a couple of weeks ago) was well timed as, in a sense, it was not unlike a classic mystery story. One that you would curl up with on a cold winter’s night. Fortunately no one was injured in the fire … Continue reading A case of whodunnit for Sherlock Holmes

A protocol referee, a new presence on the pitch

What is a protocol referee? That was the question I asked myself when I saw the agenda for the launch of the new pre-action protocol for construction and engineering disputes and the referee procedure on 2 November. On arrival, I saw the new protocol on which Caroline Pope has commented. I then heard a presentation from … Continue reading A protocol referee, a new presence on the pitch

Retrospective validation in insolvency context just got more difficult

Conferences on insolvency issues might seem rather dry but are often enlivened by discussions of how to tell when a company is on the brink of insolvency. Ostentatious headquarters and the quality of the directors’ limousines are often cited. However, there is a danger in dealing (even routinely) with companies in this position that is posed … Continue reading Retrospective validation in insolvency context just got more difficult

You have a retention of title clause but will you be paid?

I am returning to the topic of retention of title clauses (which I last discussed in 2013) because in PST Energy 7 Shipping LLC v OW Bunker Malta Ltd, the Supreme Court considered a difficult point on the interplay of these clauses and a seller’s remedies when it has not been paid but there has been a sub-sale. Retention … Continue reading You have a retention of title clause but will you be paid?

Is the winding-up route a dead letter for non-payment?

The intention behind the 1996 construction legislation was clear with regard to payment obligations: there should no longer be any room for groundless refusal to pay. The system of notices that the legislation introduced was designed to ensure that if no notice to pay less was given by the end of the prescribed period, then the … Continue reading Is the winding-up route a dead letter for non-payment?

Aspect v Higgins: where do we go from here?

The outcome of Aspect v Higgins case may cause some old files to be dusted off. Most employers will have instituted proceedings to recover an adjudication over-payment within six years of the date of payment, but contractors may have left in abeyance their claims to sums over and above those that the adjudicator awarded. Like Higgins, … Continue reading Aspect v Higgins: where do we go from here?

Enforceability of dispute adjudication board’s decision in FIDIC Contracts

There have now been four court judgments in Singapore relating to the enforceability of a dispute adjudication board’s (DAB) decision under the FIDIC Red Book form of contract. The latest judgment is PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation, which was handed down on 27 May 2015, and is discussed in greater … Continue reading Enforceability of dispute adjudication board’s decision in FIDIC Contracts

Redrafted Infrastructure Conditions of Contract now published

In March 2014, I wrote about the relaunch of the ICC’s Infrastructure Conditions of Contract, which had been discussed at a presentation to the Society of Construction Law (SCL). This post looks at the redrafted main (re-measurement) contract, which has now been published, along with guidance notes.

Mitigation and the reasonableness of a settlement agreement

In Rentokil Initial 1927 plc v Goodman Derrick LLP, the court revisited the issue of mitigation which I commented on in August. This time the context was somewhat different as the point arose in relation to a solicitor’s negligence claim where the claimant had resolved remedial arbitration proceedings that it had launched, seeking to recoup its losses … Continue reading Mitigation and the reasonableness of a settlement agreement

Mitigation and expert evidence: the pitfalls

Hirtenstein v Hill Dickinson was a solicitors’ negligence case concerning the purchase of a luxury yacht. There have been a number of superyacht claims recently and they have often arisen as a result of late delivery. However, here one of the yacht’s engines was found to have been defective after sale. The issue was whether … Continue reading Mitigation and expert evidence: the pitfalls

ICC Infrastructure Conditions of Contract re-launched

On 4th March 2014 I attended a presentation at the Society of Construction Law (SCL) by John Uff QC and John Banyard from the drafting committee concerning the re-launch of the ICC Infrastructure Conditions of Contract. Originally, these were the ICE Conditions of Contract familiar to many generations of civil engineers. However, they have had … Continue reading ICC Infrastructure Conditions of Contract re-launched

CIOB’s Contract for use with Complex Projects: take the plunge!

There was considerable press comment earlier in the year on the appearance of the Chartered Institute of Building’s (CIOB) Contract for use with Complex Projects (CPC 2013). The promoters hailed it as an important step in improving the approach to time management. However, some commentators wondered if it was too complex for everyday use. No doubt … Continue reading CIOB’s Contract for use with Complex Projects: take the plunge!

Retention of title, vesting clauses and contractor insolvency

There was a good turnout for my talk to the Society of Construction Law on 4 June on retention of title and vesting clauses, despite the counter attraction of one of the first sunny days of summer. As I said in the talk, this subject is notoriously a legal minefield where minute differences in clause … Continue reading Retention of title, vesting clauses and contractor insolvency

Going it alone as a litigant in person

Miriam Nothman might be a lawyer’s worst nightmare. She was the last litigant in person to take a case to the House of Lords – and win it. Proof, if needed, that not all litigants in person make frivolous claims. However, the Court of Appeal’s judgment in Wright v Michael Wright Supplies Ltd indicates that the … Continue reading Going it alone as a litigant in person

No reason to be complacent in costs management

In May last year, I commented on the judgment in Henry v News Group Newspapers concerning one of the costs management pilot schemes. This was a case where costs had risen substantially from the court-approved budget under the defamation costs management pilot scheme. The parties had reached a settlement, with the defendant agreeing to pay the claimant’s … Continue reading No reason to be complacent in costs management

A roundabout route to arbitration

Since the Arbitration Act 1996 came into force, the courts have upheld arbitration clauses agreed between the parties in precedence to litigation commenced by one of them. If a contract contains an arbitration clause, then parallel proceedings will be stayed on either party’s application, even if the dispute is of a flimsy nature. However, the … Continue reading A roundabout route to arbitration

Fixing the design liability and notifying claims

Much has been said on the significant findings in Walter Lilly v Mackay about concurrent delays and global claims. However, the case also has a good deal to tell us about some other issues arising commonly in construction law. In particular, I found the discussion on design liability and notifying claims of interest, not least as they … Continue reading Fixing the design liability and notifying claims

Arbitration clauses, third party rights and stays

It seems that the question of remedies in arbitration for parties seeking to exercise rights under the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) was an afterthought in the Bill’s progress through Parliament. At section 8, the Third Party Rights Act 1999 provides that if a third party’s right to enforce … Continue reading Arbitration clauses, third party rights and stays

Keep to your costs management budget

The TCC’s pilot scheme on costs management (which is governed by Practice direction 51G) has now been in force for over six months. Rather surprisingly we have yet to see a judgment from that court relating to the workings of the pilot, although an interim report was produced by Nicholas Gould and others in February. … Continue reading Keep to your costs management budget

Less is more in NEC and ICC contracts?

In advance of the amendments to the Construction Act 1996 coming into force in October 2011, the bodies that produce standard forms of contract issued amendments to cater for the Act’s amendments. Some were simply a matter of changed wording (for example, “withholding” changed to “pay less“) but some changes to the NEC and ICC standard … Continue reading Less is more in NEC and ICC contracts?

Is it guaranteed?

Does a guarantee provide the reassurance its name implies? When a transaction goes wrong, the injured party may have the benefit of a bank guarantee. It could be excused for thinking that its losses will be covered, to the extent of that guarantee. However, in these tough economic times, banks and financial institutions are carefully … Continue reading Is it guaranteed?

TCC’s new home in the Rolls Building

I was up early the other day for a visit to the new Rolls Building and to participate in a promotional film. I was an extra in a production that will not, I suspect, be nominated for an Oscar but is intended to promote the Technology and Construction Court (TCC), particularly internationally.

The TCC – a court for complex cases

What does the Technology and Construction Court’s (TCC) annual report for 2009-10 tell us about the work of the court?

Insurers back on the hook for third party claim

In November 2010, I reported on the TCC’s decision in McIlroy v Quinn. That judgment had flagged up yet another problem for a claimant seeking to take advantage of the Third Parties (Rights Against Insurers) Act 1930 (1930 Act). On 18 July 2011, the Court of Appeal described the TCC judgment as “remarkably unfair” and, … Continue reading Insurers back on the hook for third party claim

Latent Damage Act 1986: know your limitations

When the Latent Damage Act 1986 was introduced, many thought it was a sensible compromise between the need for a long-stop date and the need to protect those unaware of a latent defect. In essence it gives a claimant three years from the date when he knew or should have known of a problem to issue … Continue reading Latent Damage Act 1986: know your limitations

Terminating a building contract and mistaken motives

Terminating a contract is not for the faint hearted. If you terminate for the wrong reasons, you can find yourself having to pay a contractor’s lost profits or an employer’s additional completion costs and a contractor’s wrongful suspension can lead to an employer terminating the contract altogether. But if the mistake is a genuine one, … Continue reading Terminating a building contract and mistaken motives

Clarity in contract drafting: say what you mean

In Perriam v Wayne and Daly, the Technology and Construction Court (TCC) considered a deed of variation that “would win no drafting prizes for precision or clarity”. Not only did it transpose the names of various parties, it also “struggled to convey the essential agreement reached between the parties”. In trying to work out what the parties … Continue reading Clarity in contract drafting: say what you mean

The end of a builder’s concurrent liability in contract and tort?

Can it really be true? Can there really be settled law in the vexed area of the tortious liability of building contractors? Ever since the House of Lords’ decision in Murphy v Brentwood in 1991 there has been much debate, case law and ink spilt on this question. Cases in the TCC go one way … Continue reading The end of a builder’s concurrent liability in contract and tort?

A tale of leaks and complex structure theory

A full trial on liability and quantum in a construction dispute is a rare event these days, largely thanks to adjudication, but there has just been such a trial in the TCC. Following some preliminary skirmishes, judgment in Linklaters v McAlpine and others was given on 23 November 2010. Referring to the case as a tale of leaks … Continue reading A tale of leaks and complex structure theory

Insurer escapes third party claim

Nothing ever seems to go smoothly when a claim under the Third Parties (Rights Against Insurers) Act 1930 is in prospect. Upon insolvency of an insured this provides for the insured’s rights under any insurance policy it holds to be transferred to a third party for the purpose of enabling the third party to claim … Continue reading Insurer escapes third party claim

Frustration and good faith make an uncomfortable mix

It’s not unusual for a commercial or residential property development to run into trouble. In particular, in 2007 and 2008, when a run of boom years came to an abrupt end, developers had to urgently postpone or cancel many of their schemes. Some delays and cancellations inevitably led to disputes. One of these, the Gold … Continue reading Frustration and good faith make an uncomfortable mix