Posts from Lewis Silkin LLP

What’s in a name in a contract?

I have not seen cases about inserting the wrong name in a contract for ages. They must be like London buses. None come along for ages and then two come along in quick succession. That is exactly what has recently happened. Over the summer we’ve had Henderson J’s decision in Derek Hodd Ltd v Climate Change … Continue reading What’s in a name in a contract?

Delay: you cannot be serious!

Delays frequently occur in construction projects. Therefore, many construction contracts make delay, or rather a failure to proceed regularly and diligently, a default event giving rise to the right to terminate. However, what happens when there is no express right and the project falls into serious delay? Does the injured party have a right at … Continue reading Delay: you cannot be serious!

Penalties: the debate continues

For almost 60 years (most recently in Cadogan Petroleum Holdings Ltd v Global Process Systems), courts have been asked to consider what happens to money already paid by way of instalments in relation to a contract if the contract is rescinded and the seller retains the property that is the subject matter of the contract. In … Continue reading Penalties: the debate continues

Are the courts moving to a more restrictive approach to exclusion clauses?

While lawyers were all brought up on the principle of “freedom to contract”, there appears to be a growing trend that the courts are prepared to take a more restrictive approach when it comes to construing the scope of an exclusion clause. The latest example of this can be found in the Court of Appeal’s … Continue reading Are the courts moving to a more restrictive approach to exclusion clauses?

Whoever said adjudication killed construction law?

Looking at the law reports, some may think that the only thing the TCC ever deals with these days is the enforcement (or not) of adjudication decisions. Whatever happened to construction law? Well, luckily it still lives and breathes. In Walter Lilly & Co Ltd v Mackay and DMW Developments Ltd, Akenhead J delivered a judgment that goes … Continue reading Whoever said adjudication killed construction law?

Contract is king but it’s so unfair

The facts in Costello v Macdonald are not uncommon in the construction industry, when a party wants to redevelop a site that it owns:

Destroyed by fire. The court can offer nothing else but its sympathy

This is the position that Mr Harooni recently found himself in, after his business was destroyed by fire (Farzad Harooni v Rustins Ltd). Mr Harooni had a warehouse in a large industrial block of warehouses. Mr Harooni’s next door neighbour (Rustins) stored paint and other flammable material in its warehouse. One night a fire began that … Continue reading Destroyed by fire. The court can offer nothing else but its sympathy

Economic loss: it’s just common sense

Whenever the law is unable to provide firm guidelines on a given matter, judges seem to fall back on that great legal cop out: it’s a matter of “common sense” or it is “fair and reasonable”. No area do they seem to rely on this more than in the law of tort or, more precisely, when … Continue reading Economic loss: it’s just common sense

All that blowing hot and cold was “much ado about nothing”

Over the last couple of years, a number of adjudication cases have looked at whether a party seeking to enforce an adjudicator’s decision could argue something different in court to the case it presented to the adjudicator. While some call it “approbating and reprobating“, I prefer and can understand the term “blowing hot and cold”. HHJ … Continue reading All that blowing hot and cold was “much ado about nothing”

Why is negligence so complex?

Of the various areas of law that make up what is known as “construction law”, I think it is fair to say that negligence and whether a certain loss is recoverable is perhaps the most complex and one which, still today, many years after a snail was found in a bottle of ginger beer, gives … Continue reading Why is negligence so complex?

Do liquidated damages survive termination?

In Selby Hall and Philip Shivers v Jan Van Der Heiden, Coulson J rejected the suggestion that the defendant contractor’s liability to pay liquidated damages came to an end when its employment under the building contract was terminated as a result of its breach.

Referral, Response, Reply, Rejoinder, Surrejoinder… Surely this madness has got to stop?

There are a number of inherently competing principles in the adjudication process. The timetable is short and judges have recently been telling us that adjudicators should keep control of the timetable and not to allow the process to go on forever. However, at the same time, the rules of natural justice apply. This includes giving … Continue reading Referral, Response, Reply, Rejoinder, Surrejoinder… Surely this madness has got to stop?

What are the chances of it all going horribly wrong?

Today, most M&E systems contain multiple safety devices, all of which are intended to kick in, in the event of a failure. But, what happens if they all fail at the same time? Is the installer of one of those so called safety devices liable for all the damage caused, or is the chance of all … Continue reading What are the chances of it all going horribly wrong?

Peter Coulson J: He’s only human?

He writes such good judgments. They are so easy to read. Apparently he is never wrong. Certainly, as far as I am aware, the Court of Appeal has never found that he has erred. So it is with some trepidation and hesitation that I suggest that, when it comes to what happens if the payment provisions … Continue reading Peter Coulson J: He’s only human?

Excuses, excuses… sometimes they really do work

The statutory right to suspend performance of all contractual obligations for non-payment was granted to contractors when the Construction Act 1996 was brought into force, more than 10 years ago.

Why can’t we stay together?

It is usually the case that when one party serves a notice of breach, with a view to terminating the contract (if the breach is not remedied), the other party does not believe that it is in breach. As a result, it will argue that the notice is invalid and the contract cannot be terminated. Certainly, … Continue reading Why can’t we stay together?

When is final, conclusive and binding, not so final, conclusive or binding?

Who would be a drafter of contracts? Not me. I only have to read cases like Shell Egypt West Manzala GmbH and Another v Dana Gas Egypt Limited [2009] EWHC 2097 (Comm) to persuade myself that drafting is not for me.

No withholding notice – no chance?

We have continuously been told that if you fail to issue a valid withholding notice, you have to pay the sum which is due and you have lost your right to set-off and generally argue anything to the contrary. That is certainly true in cases concerning interim certificates and adjudication (where the adjudicator’s decision is … Continue reading No withholding notice – no chance?

It ain’t what you write (it’s the way that you do it)

Or put another way, do contracts really mean what they say? If you are as old as me, you may remember the Fun Boy Three singing something like that.  If you can remember the Fun Boy Three, you will also remember those days in law school when you were told time and time again that … Continue reading It ain’t what you write (it’s the way that you do it)

Duty to warn

“Timber!” However loud or often I say it, will anyone really listen to the warning? Site can be a dangerous place. Much of what goes on in or around a construction site is, or at least has the potential to be, dangerous. There is a lot of heavy, powerful equipment being moved around, used and … Continue reading Duty to warn