I recently looked at some bespoke drafting that, as Eric Morecombe might have put it, had all the right words, but not necessarily in the right order. To avoid a fracas, I suggested that using a familiar standard form might be a better starting point and would save quite a bit of time. My idea … Continue reading Show me the way (in contract drafting)
We all have our favourite points when it comes to contract drafting. Some people are busy thinking up solutions to the conundrum of concurrent causes of delay. Others focus on how reasonable skill and care limitations can survive in complex contracts. Some purchasers of construction services have a policy of not paying out more than … Continue reading Retention of title revisited
Einstein famously said that the distinction between past, present and future is only a stubbornly persistent illusion. The nature of time is not an easy concept to grapple with and I had a similar (albeit not quite so ethereal) experience preparing a recent seminar on the practical effect of the decision in Carillion Construction v … Continue reading Who knows where the time goes?
A barrister friend told me that, on his first day, he was told by his Head of Chambers that he should always behave like a gentleman – and that was all he needed to know about business ethics. That was a while ago and now most organisations have lengthy ethical policies with accompanying training for … Continue reading Can ethical policies be distinctive?
This is the final post of a series of quarterly blog posts on alliance contracting and it looks at the extent to which alliancing has been adopted in particular sectors in the UK. It considers some of the key differences between traditional contracts, partnering agreements and “pure” alliancing contracts, and whether the perceived benefits of … Continue reading Alliance contracting: breaking with tradition
Over the past month or so there has been much accusation, from both sides of the Referendum debate, that the other side is making misleading or untrue statements. I went through a thought process about this which started with me thinking, rather smugly, that law isn’t like politics.
I read somewhere that fifty-somethings are the most flexible workers – and not just in the legal profession. My fifty-something postman is a retired Royal Marine and the sixty-something Tesco delivery man recently retired from a desk-bound office job. We are now told that “agile is the new flexible” and people write about it as … Continue reading Reflections on agile working
This is the third of a series of quarterly blog posts on alliance contracting and looks at the “no blame, no fault” provisions that are key to a number of alliancing contracts. It examines the meaning of these concepts in an alliance contract, the benefit to the contracting parties and, most importantly, whether such provisions … Continue reading Alliance contracting: no blame, no fault
This is the second of a series of quarterly blog posts on the subject of alliance contracting and looks at the painshare and gainshare provisions that are key to a number of alliancing contracts. It examines the payment principles under an alliance contract, looking at the various factors that must be taken into account in … Continue reading Painshare and gainshare provisions in alliancing contracts: the benefits of pulling together
Although alliance contracting has been used in the UK over the past 15 years, it has never quite won the affections of contracting parties here which has been achieved in other jurisdictions. However, recent trends suggest that the move towards alliance contracting is gaining momentum. Network Rail has already moved to the alliance model for … Continue reading Alliance contracting: the way forward?
They say that the UK has weather instead of a climate. Here in Panama City, there is definitely a climate. The temperature is in the mid-thirties (Celsius) every day regardless of the season. For eight months it is rainy, very rainy, with frequent thunderstorms. The record was set in 2002 when 562 mm of rain … Continue reading Not solving every problem
Spam, scam and getting in a jam… I recently received an email offering me what looked like a tasty piece of work, but a longer look at the email made me realise that it was a scam.
It goes without saying that one of the most important advantages of the “rule of law” for commercial parties is the right to enforce contractual obligations. Coupled with this is a need for contractual certainty. The law is there to enforce rights, particularly where those rights have been agreed upon. It provides a system for … Continue reading LDs, exclusive remedies and an injunction
There is nothing more exciting for a lawyer than the first meeting on a new project. Cynics would say that it’s all “downhill” from that point on, or “uphill” if you prefer the (more topical) cycling metaphor. But let’s stick with the positive. The enjoyment is twofold: The pleasure of winning or being entrusted with … Continue reading How to start a project
I’m not really into labels (designer or otherwise). For example, I tell people that the label “letter of intent” is potentially misleading. Better to call it a “letter”, so that you are more likely to read it with an open mind, and work out what it actually says. I have been looking at the JCT Design … Continue reading Are you paying a debt, or are you just paying?
One of my clients recently reorganised into a number of trading companies plus a holding company. They did not novate any existing contracts but wanted new contracts to be entered into by the appropriate trading company. The trading companies were brand new and therefore had no credit history. Some of the customers (and sub-contractors) were … Continue reading Primary obligor: what is it, and would you like to be one?
I was talking to a Dutch lawyer at a conference the other day. He asked me what “hold harmless” meant and whether it was necessary to use it when drafting an indemnity under English Law. The conversation went on to discuss whether giving an indemnity was better than an ordinary contractual obligation (or worse – depending … Continue reading What does hold harmless mean? What is an indemnity anyway?
Last week I went to a presentation at the Centre for Construction Innovation to hear Paul Meigh talk about the Government Construction Strategy. Paul is the deputy director for construction and efficiency reform in the Cabinet Office and introduced himself as the “the officer responsible for publication of the paper”. (The Chief Construction Adviser, Paul … Continue reading Government Construction Strategy: something new or same old same old?
R.E.M. felt fine, even though it was the end of the world as they knew it. Leaving aside the raft of current problems facing the planet, the economy and our industry… …and restricting our event horizon to the bubble that we construction lawyers inhabit, do we feel fine when we hear that the sanctity, purity … Continue reading On demand bonds: do we feel fine?
I am acting for a client who is thinking about bringing a claim under a CFA supported by ATE insurance. The company has never been involved in litigation before, except for small debt actions. Apart from trying to understand the litigation process, the whole system of recoverability of premiums and success fees is quite a lot … Continue reading Civil litigation reform after Jackson; the government has its say
There is extensive experience within the UK construction and engineering industries (and the advisers to those industries) of working in many different parts of the world. However, there is now a need (as opposed to a willingness) to work abroad because of the reduced workload in the UK. Less experienced companies will seek to work … Continue reading Working abroad: political uncertainty and country risk
Many years ago (longer than I care to admit) I went on my first foreign business trip. I had done a small piece of work for a UK subsidiary of a European company. I didn’t know them very well, but was pleasantly surprised when their holding company asked me to go to a meeting in … Continue reading Don’t be haunted by money laundering rules
I’m reading a futurology book at the moment. The author says that the way to predict the future is to understand the causes of events by reference to underlying influences. He says that politicians (and other powerful people) do not control the world as much as we think. Many of the decisions that they make … Continue reading What does the future hold for contract interpretation?
We learnt from Fun Boy 3 and Bananarama that “it ain’t what you do it’s the way that you do it… and that’s what gets results”. But how, you might wonder, does that help us enter the arcane world of delay analysis? I went to a seminar last week on City Inn v Shepherd and learnt much … Continue reading City Inn and delay analysis: how to get a result
Another Saturday afternoon in Panama (I’ll be permanently back in the UK at the end of October), and I am sitting on the balcony again with the ubiquitous milky coffee. But instead of staring out into the Pacific and letting my mind wander I’ve been reading Tony Blair’s book. Whether or not you are a … Continue reading How to settle a dispute
It’s a cloudy, warm and humid Saturday afternoon here in Panama City and I’ve been sitting on the balcony of my apartment gazing out into the Pacific Ocean and drinking a cup of milky coffee. There are about thirty ships in Panama Bay waiting to transit the canal, the Pacific entrance to which is about … Continue reading The ICE contract: still a contract of choice?
If there is a contract between the adjudicator and the parties (and case-law suggests that there is), can you apply all the usual rules of contract, including repudiation, to it? Could this give an aggrieved party a tactical advantage?
Energy and water security are thought by many to be the biggest challenges facing the world. Climate change, although even bigger, is a little further away. The problem is how to fix the first two, now, without making the third one even worse.
The government has announced that many Building Schools for the Future (BSF) projects have been cancelled. The work still needs to be done. It’s just that Building Schools for the Future has, for many, become “building schools in the future”.
In September last year, under the heading unreasonable skill and care, I looked at the dilemma facing professional people who need to strike a balance between giving advice in the timescale required and taking long enough to be as confident as they can be that the advice is correct.
I read an interesting article in the Law Society Gazette by Masood Ahmed about enforcing judgments.
I saw a good film recently called The Bank Job, which is loosely based on the 1971 Baker Street Robbery. The plan is to break into safety deposit boxes, which the robbers think will contain large amounts of cash and valuables. I won’t give the story away, but the Security Service, MI5, gets involved because … Continue reading Does the law allow suppression of evidence?
Many people worry about making errors because they think are not clever enough to realise that what they are doing is wrong or incorrect. In fact, the majority of errors are simple ones.