Good faith in construction contracts: a sense of (cross-jurisdictional) perspective
A broad and generally applicable duty of good faith has long been rejected by the English common law. However, as commercial parties to contracts in the Middle East may be aware, the duty of good faith – sometimes referred to as “fidelity to the bargain” – is not only recognised but enshrined within the civil … Continue reading Good faith in construction contracts: a sense of (cross-jurisdictional) perspective
Will a new tribunal in Dubai help clarify jurisdiction?
A new judicial tribunal has been set up in Dubai to bridge conflicts arising between the jurisdiction of the local Dubai courts and the Dubai International Financial Centre (DIFC) courts. The new tribunal has the power to issue binding decisions on which court should hear a particular dispute when there is a conflict between the … Continue reading Will a new tribunal in Dubai help clarify jurisdiction?
Innovation, can we get some more?
“Innovation” and “collaboration” are the kind of buzz words that are batted around very frequently. Unfortunately, the more often I hear them, the less sure I am of what their importance is in an infrastructure context. Some of the answers can be found in the report, Innovation in the Supply Chain, which was published following a joint … Continue reading Innovation, can we get some more?
Tough times: termination under Qatari law
As the Gulf nations enter a period of readjustment following the oil price rout and debate continues about where the price of crude is heading, the fact remains that infrastructure projects are being impacted by dwindling funding opportunities. In turn, this increases the temptation to “press the termination button” throughout the contracting chain. Sector downturn … Continue reading Tough times: termination under Qatari law
PPPs in the Middle East: the new way forward?
Given the current climate created by declining oil prices, more pressure is being placed on government budgets in the Middle East. This month a new PPP law, specifically drafted to regulate partnerships between the public and private sectors in the delivery of projects, is due to come into force in Dubai. Could this be the … Continue reading PPPs in the Middle East: the new way forward?
Good faith: continuing evolution?
In June 2014, I wrote about clause 10.1 of the NEC form and how it was applied in Northern Ireland Housing Executive v Healthy Buildings. Clause 10.1 and good faith in general are increasingly a feature of judgments handed down by the courts. So where are we now?
BIM in the Middle East – resolving inconsistencies and managing the project lifecycle
In this blog we consider building information modelling (BIM) in the Middle East and some of the key issues you should be aware of as the use of BIM becomes more prevalent in the region. BIM is being used with increasing frequency on some of the major infrastructure projects in the Middle East. For those unfamiliar … Continue reading BIM in the Middle East – resolving inconsistencies and managing the project lifecycle
Aspect v Higgins: a practitioner’s view
Aspect v Higgins is the first case relating to adjudication or the Scheme for Construction Contracts 1998 to reach the Supreme Court. Indeed, so far as I am aware, it is the first case to reach the highest court since the House of Lords decided Melville Dundas v Wimpey in 2007. Accordingly, adjudication practitioners have been … Continue reading Aspect v Higgins: a practitioner’s view
From the ground up: managing ground condition risk in the Middle East
Significant and unexpected costs and delay are incurred on many construction projects in the Middle East due to adverse ground conditions. It is a common problem that can be addressed by sensibly allocating risk between the parties. In this post, we consider the apportionment of liability for ground condition risks under the FIDIC forms of … Continue reading From the ground up: managing ground condition risk in the Middle East
Will integrated project insurance do away with PI and construction all risks insurance?
This depends on your perspective. Before you click through to the next blog with a resounding “no” at the back of your mind, it should be said that this question was enough to attract a substantial crowd of industry professionals to the recent address given by Paul Reed QC to the King’s College Construction Law … Continue reading Will integrated project insurance do away with PI and construction all risks insurance?
Getting paid: remedies for non-payment in the UAE construction industry
Practical measures for recovering payment unique to the local environment. One of the biggest risks that a contractor faces on any construction project is non-payment. Default on payment is as much a fact of business life in the UAE construction industry as in the UK and any other part of the world. While many of … Continue reading Getting paid: remedies for non-payment in the UAE construction industry
Do you know your limitations? Decennial liability in the UAE
When entering into contracts in the UK, most parties will understand that there are time limits under UK law within which they must bring a claim under the contract. There are also time limits for the bringing and defending of claims under UAE law. However, parties contracting in the UAE may not be aware that … Continue reading Do you know your limitations? Decennial liability in the UAE
Mediation, DABs and ADR in the Middle East (part two)
Taking up the challenge: the role of mediation, DABs and other ADR methods in the Middle East Mediation and DABs Last week, I looked at mediation and dispute adjudication boards (DABs) in the Middle East. This week, I will continue my thoughts by looking at other possible methods of alternative dispute resolution (ADR), before considering what … Continue reading Mediation, DABs and ADR in the Middle East (part two)
Mediation, DABs and ADR in the Middle East (part one)
Taking up the challenge: the role of mediation, DABs and other ADR methods in the Middle East With a considerable number of new and on-going projects in the Middle East, efficiently resolving disputes remains a pertinent issue for contractors and employers alike. The fallout following the global recession led to multiple disputes, but have contracting … Continue reading Mediation, DABs and ADR in the Middle East (part one)
NEC: a suitable contender? Use of the NEC standard form in the Gulf region
Considering the cultural and long-standing approach to contracting and dispute resolution in the UAE and Qatar, compared to the UK, to what extent can the NEC form of contract compete with more traditional construction contracting in the Gulf region, including the commonly-used FIDIC forms?
Have you lost interest? Right to recover interest for late payment
A claim for interest will often be the first remedy sought in the event of late payment. As such, it is an issue close to the hearts of contracting parties. It is also often an area of confusion in the Gulf region given the general prohibition on the levying of interest under Islamic Sharia law, … Continue reading Have you lost interest? Right to recover interest for late payment
How much time have you got? Enforcing contractual notice provisions
This is the second of a three-part blog series in which we consider some key contractual issues in the context of the Qatari and UAE construction markets. In our first blog, we looked at the principle of freedom to contract as a matter of UAE and Qatari law in the context of liquidated damages (LDs). You might … Continue reading How much time have you got? Enforcing contractual notice provisions
Adjustment of liquidated damages: freedom to contract v unfair windfall
In this first of a three-part blog series we consider some key contractual issues in the context of the Qatari and UAE construction market. We begin with an overview of liquidated damages (LDs) provisions for project delays. We all know that an employer’s entitlement to liquidated damages has a significant impact on contractors and the supply chain. … Continue reading Adjustment of liquidated damages: freedom to contract v unfair windfall
The Ebola crisis: knowing your force majeure provisions
The rapid spread of the Ebola virus in west Africa is already having an impact on projects and business activities there. As the virus spreads, so will that impact. For example, in August, steel and mining company ArcelorMittal said that contractors working on one of its iron ore mines in Liberia declared force majeure and … Continue reading The Ebola crisis: knowing your force majeure provisions
Personal liability, contractual liability, tortious liability: what’s the difference?
Some of you may recall poor Mr Babb the surveyor who, in 2001, ended up with personal liability for a valuation he prepared when his employer went bust (Merrett v Babb). Fast forward to 2014 and Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd and others, where Sainsbury’s tried to run the same argument when it claimed … Continue reading Personal liability, contractual liability, tortious liability: what’s the difference?
What is NEC3’s clause 10.1 for?
Whether core clause 10.1 of the NEC3 suite of contracts serves any practical purpose or is merely aspirational is a debate many enjoy having. The latest decision of Northern Ireland’s Court of Appeal in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd suggests one possible use is as an aid to interpretation.
Hillcrest Homes v Beresford & Curbishley: a bridge too far
The recent case of Hillcrest Homes Ltd v Beresford & Curbishley Ltd deals with important issues regarding the enforceability of an adjudicator’s decision. It also highlights that parties should not overlook other substantive issues when faced with CPR Part 8 proceedings and deciding whether to defend them.
Ethics for advocates?
Cynics may argue ethics are the last thing advocates need but while lawyers in the UK are highly regulated, the position is less clear in international arbitration. This was one of the topics addressed by Professor John Uff CBE QC in the sixteenth King’s College Construction Law Association (KCCLA) Sweet & Maxwell talk, which took … Continue reading Ethics for advocates?
Arbitrations, agreements and alternative arguments
The TCC’s decision in The Secretary of State for Defence v Turner Estate Solutions Ltd provides yet another example of the courts refusing to interfere with the arbitration process and disturb an arbitral tribunal’s award. In addition, it: Is further evidence of the difficulties a party faces in making a challenge under section 68 of the Arbitration … Continue reading Arbitrations, agreements and alternative arguments
Can a third party use adjudication?
The TCC’s decision in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd surprised many construction lawyers in concluding that collateral warranties can be construction contracts for the purposes of the Construction Act 1996. The court held that Parkwood Leisure (the beneficiary of a collateral warranty from Laing O’Rourke) could commence an adjudication against … Continue reading Can a third party use adjudication?
TCC decides that tenant collateral warranty is subject to statutory adjudication
In Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd, Akenhead J was asked to determine whether a collateral warranty was a “construction contract” for the purposes of Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) and therefore subject to statutory adjudication. The collateral warranty did not refer … Continue reading TCC decides that tenant collateral warranty is subject to statutory adjudication
BIM roundtable: a view from industry
I was recently involved in hosting a roundtable event attended by representatives from across the construction industry. The event focused on the impact Building Information Modelling (BIM) has had on the UK construction industry to date. We discussed the processes, technology and collaborative behaviour required to successfully implement BIM more widely, and the challenges faced … Continue reading BIM roundtable: a view from industry
Making head office overhead and profit claims
This post looks at the practical steps in making head office overhead and profit claims, referring to Akenhead J’s blockbuster decision in Walter Lilly v Mackay. Most will know that the court rejected the Scottish (apportionment) approach to concurrent delay and, no doubt, almost all will know of Mr Mackay’s uncompromising approach to his contractor … Continue reading Making head office overhead and profit claims
Collaboration and alliancing: changing times
The times they are a-changin’… It was almost 20 years ago that Sir Michael Latham called on the construction industry to change its ways and embrace collaborative working (Constructing the Team, 1994). We know these things take time but are we now finally facing the dawning of the age of Latham? It is clear that … Continue reading Collaboration and alliancing: changing times
Punctuation matters
I wrote last time about Mid Essex Hospital Services v Compass Group (trading as Medirest). Others have commented about the case and how the Court Appeal interpreted the good faith clause. What has received less attention was the emphasis on punctuation and how that, and an imaginary caesura (see below), was the basis for the decision.
Good faith: the Court of Appeal strikes back
In January this year, I wrote about Compass Group (trading as Medirest) v Mid Essex Hospital where the High Court enforced a good faith clause and criticised a party’s conduct (involving a £84,450 chocolate mousse deduction). Having suggested that the courts are now more open to such arguments, the Court of Appeal reversed the decision … Continue reading Good faith: the Court of Appeal strikes back
Whisky, human rights and adjudication in Scotland
Court of Session decides that to enforce adjudicator’s decision would be a breach of Human Rights. Whyte and Mackay v Blyth & Blyth is the second decision in a long-running dispute over a whisky bottling facility. Readers may recall Lord Malcolm’s initial, somewhat surprising decision, which I blogged about last May.
When should you throw in the towel? Contempt: a step too far
I had the pleasure of sitting with Akenhead J on 22 February 2013 as part of the marshalling scheme run by the TCC, a scheme which I would thoroughly recommend. The court heard the next round in the long-running dispute of Berry Piling Systems Limited v Sheer Projects Limited. This dispute has been through the … Continue reading When should you throw in the towel? Contempt: a step too far
BIM information manager: new risks and opportunities?
One of the new opportunities that Building Information Modelling (BIM) offers the construction industry is taking on the role of “BIM information manager”. As part of their institutional BIM protocol drafting, a number of professional bodies (including, we understand, the Construction Industry Council, whose protocol is expected soon) have begun to develop the role. In-house BIM teams … Continue reading BIM information manager: new risks and opportunities?
Project bank accounts: five practical questions
I’ve got a multiple choice question for you: is a Project Bank Account (PBA)? A. a simple mechanical process which allows for fast and secure payments to be made to the supply chain, cutting out slow payers; B. a complicated pain in the proverbial which achieves no real benefit for anyone; or C. a small … Continue reading Project bank accounts: five practical questions
Contracting to use good faith
In 1992, the House of Lords said that a contractual obligation to exercise good faith was “…inherently repugnant to the adversarial position of the parties when involved in negotiations… [which] is unworkable in practice…” (Walford v Miles 1992 AC 128). It refused to imply such an obligation during pre-contract negotiations. 20 years later, has anything changed?
Do’s and don’ts of terminating a construction contract
A practical ten-point guide for those considering whether to exercise a contractual right to terminate, or a common law right of termination, on their construction or engineering project.
Complete performance, substantial performance and adjudication
Is sub-contracting in Stevenage more dangerous than sailing the North Atlantic? And what have sub-contracting in Stevenage in 2007 and sailing in the North Atlantic in 1795 got in common with an adjudicator’s decision in 2012? Regrettably, for the adventurers among you, this blog doesn’t attempt some kind of statistical comparison of the physical risks of the sub-contract … Continue reading Complete performance, substantial performance and adjudication
How can parties to litigation make sure they get their costs back?
Sadly, there is some litigation that is very hard to settle. Some claimants are not very realistic about what their claim is worth or about whether they will recover their legal costs. Equally, some claimants are badly advised by either their lawyers or their experts about their prospects of success and how much they might … Continue reading How can parties to litigation make sure they get their costs back?
The return of the alliance
Alliancing seems to be back in vogue. While it has always been in use in the UK over the last fifteen or so years, it has never really made it to the mainstream in quite the same way that it has in other jurisdictions. For example, in Australia, alliancing accounts for one third of public … Continue reading The return of the alliance
Using a court claims app?
Sorry, there is no such app (yet) but we can’t be far off since Money Claims Online does very much the same job. It may sound like a dodgy ambulance-chasing outfit but it is a legitimate service provided by HM Court Service.
PPP and PFI: defending unavailability deduction claims
The first part of this post explored the increased number of unavailability deductions being levied on PFI and PPP projects. I explained the contractual provisions that must ordinarily be satisfied before an employer can establish any entitlement to levy unavailability deductions. Here, I set out various means by which a party could attempt to defend … Continue reading PPP and PFI: defending unavailability deduction claims
PPP and PFI: is it really unavailable?
The more cynical amongst us may think that the growing frequency of unavailability deductions on PFI/PPP projects is a sure sign that employers are going the extra mile to claw back the cost of PPP or PFI projects. However, in their eagerness to recoup some costs, employers, sponsors or authorities can (and often do) ignore … Continue reading PPP and PFI: is it really unavailable?
Addressing the Bribery Act in your contracts: a tiered approach
This summer marks the first anniversary of the coming into force of the Bribery Act 2010 in the UK. Many contractors and others within the construction and infrastructure sectors have reviewed their compliance systems since the introduction of the Bribery Act. With the emphasis in the Government Guidance on taking a risk-based approach, how might … Continue reading Addressing the Bribery Act in your contracts: a tiered approach
Can a party counterclaim against adjudication enforcement?
The law regarding the enforcement of adjudication decisions has been relatively settled for some time. Regular readers of the PLC blogs will be familiar with the basic concepts. Time and time again decisions from the courts have confirmed that, so long as an adjudicator asks himself the correct questions, acts within his jurisdiction and manages … Continue reading Can a party counterclaim against adjudication enforcement?
BIM: the legal issues: what’s new?
My posts on building information modelling (BIM) over the last six months have touched on ownership and IP, preparedness and managing the professional team. In writing them, I’ve drawn attention to some of the key legal issues that will need to be considered as BIM develops. There is a consensus emerging that BIM level 3 may require radical thought. … Continue reading BIM: the legal issues: what’s new?
Release of retention under the amended Construction Act
The Local Democracy, Economic Development and Construction Act 2009 (LDEDC Act 2009), which amended the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) has now been in force for over half a year. This post focuses on one aspect of the statutory requirement that a construction contract includes an adequate mechanism for payment … Continue reading Release of retention under the amended Construction Act
Avoiding payment to an insolvent payee under the amended Construction Act
Continuing on the theme of commenting on the drafting of the amendments made to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) by the Local Democracy, Economic Development and Construction Act 2009 (LDEDC Act 2009), this blog considers new section 111 of the Construction Act 1996. Specifically, it looks … Continue reading Avoiding payment to an insolvent payee under the amended Construction Act
FIDIC: when is a dispute not a dispute?
My last blog looked at the difficulties that can arise in a typical FIDIC scenario where an employer does not honour a dispute adjudication board (DAB) decision that is binding, but not final. This blog looks at the difficulties that can arise in relation to the definition of the “dispute” that is submitted to the … Continue reading FIDIC: when is a dispute not a dispute?
Prohibiting conditional payments under the amended Construction Act
To pay or not to pay, that is the question… Not surprisingly, there have been quite a few blogs on this site over the last several months on the amendments made to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) by the Local Democracy, Economic Development and Construction Act … Continue reading Prohibiting conditional payments under the amended Construction Act
FIDIC: problems with enforcing DAB decisions
In the typical FIDIC scenario, the dispute resolution provisions sound delightfully straightforward. However, what happens if one of the parties doesn’t comply?
Arbitrating in Hong Kong after FG Hemisphere
A storm in a Chinese teacup? The Hong Kong Court of Final Appeal’s (HK CFA) decision in Democratic Republic of the Congo and others v FG Hemisphere Associates LLC [2011] 4 HKC 151 (FG Hemisphere) has caused concerns, but those concerns are misplaced. A business considering whether Hong Kong will retain its position as a pre-eminent Asian arbitral seat should … Continue reading Arbitrating in Hong Kong after FG Hemisphere
BIM: managing the professional team
In my third post in this series on Building Information Modelling (BIM), I concentrate on the professional team. Fully integrated BIM delivery will inevitably affect the way in which professional consultants work together and work for their client. Integrated delivery means a fully integrated contractual framework, including the professional team’s terms of appointment. But how will … Continue reading BIM: managing the professional team
Contractual obligation to progress construction works
The progress of a contractor’s works is often a key factor in a construction project completing on time. Construction contracts usually include terms that specify the progress required and the consequences if that progress is not achieved. However, what is the position when the contract only gives the employer a right to terminate for the … Continue reading Contractual obligation to progress construction works
BIM: mind the gap
As Building Information Modelling (BIM) continues to become one of the hottest topics in the construction industry, the stark differences between the aspirations of government and the readiness of the industry to implement BIM become even more apparent. Before the Christmas break, I took a look at ownership rights and BIM. This post now highlights … Continue reading BIM: mind the gap
BIM: ownership rights
Already frequently used in the USA and now compulsory on public projects in Denmark and Finland, Building Information Modelling (BIM) looks set to explode upon the UK domestic construction industry over the next few years. This development will be spearheaded by some major infrastructure projects and the government’s initiative to make it compulsory on public … Continue reading BIM: ownership rights
Economic duress: wrestling with the strong-arm tactics
These are tough times for the construction industry. The OECD has just announced that the UK is heading back into recession. Big deal – the construction industry has never got out of one that started in 2008 when Lehman Brothers fell over. The Chancellor’s announcement of an extra £30billion for infrastructure is obviously welcome, but … Continue reading Economic duress: wrestling with the strong-arm tactics
Challenging an arbitrator’s award is hard to do
If you have agreed in your construction contract that any dispute will be referred to arbitration, rather than the courts, the arbitrator’s decision has to be seriously wrong before the court will “interfere” and give leave to appeal the award. Despite this, cases involving appeals from an arbitrator’s award on a point of law under section … Continue reading Challenging an arbitrator’s award is hard to do
The new first edition FIDIC sub-contract
Last month FIDIC published its official “First Edition” of “Conditions of Subcontract for Construction, Building and Engineering Works designed by the Employer” – the subcontract primarily intended to be used with the FIDIC Red Book and the harmonised MDB Conditions (the Pink Book). As the “Test Edition” was launched almost 2 years ago (in December … Continue reading The new first edition FIDIC sub-contract
The answer is collaboradjudication
The question is, “Is adjudication a collaborative tool that can be used to avoid disputes?”. Crossing collaboration with adjudication is a bit like crossing a labrador with a poodle. Some people will like the results, others will not. One of the risks in writing a blog is that anything you write will be used against you in … Continue reading The answer is collaboradjudication
Defective premises: how will a court assess damages?
Ramsey J has provided a helpful summary of the principles that apply in deciding the type and level of damages to be awarded in cases involving defective premises. He did so in a case involving claims by freeholders of homes built at a development at Eden Park in Hartlepool during 2002 to 2004 (Harrison and … Continue reading Defective premises: how will a court assess damages?
Civil litigation costs – imminent revolution or evolution?
Following Jackson LJ’s Review of Civil Litigation Costs: Final Report, published in January 2010, and a Ministry of Justice consultation paper in November 2010, lawyers waited with eager anticipation (or, in some cases, trepidation) as to what civil litigation costs reforms the government would recommend implementing. The Ministry of Justice’s response highlighted that “the way forward” is to … Continue reading Civil litigation costs – imminent revolution or evolution?
What is a works or services concession? Do possible regulatory changes matter?
In the UK, we tend to talk more about PFI and PPP than about concessions. In the EU, a consultation on concessions closed in September 2010, but the results have not yet been published. We can only assume that the Commission has been waiting for the outcome of its Green Paper consultation on the modernisation … Continue reading What is a works or services concession? Do possible regulatory changes matter?
Health and safety lessons for business: hard lines and a helping hand
On 11 May 2011, the Court of Appeal turned down the application from our client, Cotswold Geotechnical Holdings Ltd, for permission to appeal against its conviction for corporate manslaughter and its sentence (in the first prosecution under the new corporate manslaughter legislation).
Infrastructure in the new era
Infrastructure in the New Era is published by Constructing Excellence and Pinsent Masons. Over the past twelve months, together with Constructing Excellence, we have been examining how the infrastructure sector has made better progress than many other sectors in reforming, improving and modernising its approach to the delivery of major infrastructure assets. We sought the views … Continue reading Infrastructure in the new era
Honesty is the best policy part 2: the spreadsheet with the wrong result
In my last post I discussed what you do when you receive an offer which is too good to be true. But what if the contract terms are too good to be true. Can you take advantage? The Court of Appeal seems to be saying that it all depends on how you behave… …while ING … Continue reading Honesty is the best policy part 2: the spreadsheet with the wrong result
Honesty is the best policy: e-mail pitfalls and alleged blond moments
Desperate times may call for desperate measures, but think carefully before you cross the line. There is a temptation to do what is necessary to secure the deal, but make sure what you say is accurate.
Is it open season on experts after Jones v Kaney?
In Jones v Kaney, the Supreme Court changed the law and abolished the rule that gave experts immunity from being sued. Why did the Supreme Court change a rule that had existed for over 400 years? Are we now expecting a flood of claims against experts by the “aggressive clients” Lord Hope referred to?
The “not so great” section 108A debate
Over the last couple of weeks Jonathan Cope has looked at what he dubbed “the great section 108A debate”. In one sense this title is very apt – the substandard drafting in new section 108A of the Construction Act 1996 is certainly generating a great deal of debate in the industry. However, I wonder if we should … Continue reading The “not so great” section 108A debate
When optimism knows no bounds: property developers take note
In Roberts v Frohlich, Norris J considered whether the directors of a property development company, Onslow Ditchling Limited (ODL), had acted improperly prior to ODL’s liquidation. ODL was incorporated as a special purpose vehicle to buy and develop a single site at Ditchling that had planning permission for 30 industrial units. The development was to … Continue reading When optimism knows no bounds: property developers take note
A warning for contractors: don’t be complacent about high LDs
As I was recently sailing beneath a deep blue sky on a junk in the majestic Hong Kong Harbour, gin and tonic in hand, you may be surprised that I had the law on my mind – specifically, Azimut-Benetti v Healey. A dispute between the parties required the High Court to revisit the classic dichotomy between liquidated damages … Continue reading A warning for contractors: don’t be complacent about high LDs
To infinity and beyond? Limiting liability after Centrica v Accenture
The parties to civil engineering and construction contracts, particularly for energy projects, manufacturing facilities, process plants, waste processing and similar projects, increasingly try to fix a “final frontier” for their exposure to claims, using a limit of liability clause. Last summer’s GB Gas Holdings (referred to as Centrica) v Accenture reminds us about how limits of … Continue reading To infinity and beyond? Limiting liability after Centrica v Accenture
Adjudication: when is a decision not a decision?
An adjudicator cannot determine a dispute which is the same, or substantially the same, as one which has been decided in a previous adjudication. When faced with such a claim, an adjudicator should resign. If he issues a decision, the decision will be unenforceable, as he had no jurisdiction to issue it. It is a matter of fact … Continue reading Adjudication: when is a decision not a decision?
No contract, no claim? How about unjust enrichment
Where one party has carried out work for another, the party who performed the work has (broadly speaking) two options for seeking payment for that work. The choice depends on whether there is a concluded contract and, as always, the facts of the case. If there is a concluded contract, that’s great, bring a claim under … Continue reading No contract, no claim? How about unjust enrichment
Reasonable endeavours and best endeavours
Commercial agreements often include obligations to use reasonable endeavours, and variations on that theme. The construction industry is no exception.
Does the genuine pre-estimate of loss test work?
The “genuine pre-estimate of loss” test is closely-tied to the liquidated damages clause (also known as LDs or LADs), which is a common feature in construction and engineering contracts. In the wider commercial context, it is part of the test of whether a court will strike down a clause as an unenforceable penalty. Having been … Continue reading Does the genuine pre-estimate of loss test work?
The dispute resolution clause is not just boilerplate
Chalbury McCouat International Ltd v PG Foils Ltd shows the English courts’ willingness to support the process of arbitration, where that is what the parties intended. It also reminds us that if the dispute resolution clause is properly thought out in the first place, parties can avoid getting into disputes about dispute resolution.
No defect too small?
Does size matter? It certainly did in a recent Australian case, Unique Building PTY Ltd v Brown. The decision tackles an issue which crops up in construction defect claims: can a party recover the cost of “starting again”?
City Inn v Shepherd Construction: what does it mean for extension of time claims?
Adjudication has contributed much to the construction industry since it was introduced by the Construction Act 1996. On the whole, disputes are resolved more quickly (if not more fairly) and, after some initial scepticism, the industry as a whole has come to accept, if not love, this “new” form of dispute resolution. It is perhaps a … Continue reading City Inn v Shepherd Construction: what does it mean for extension of time claims?
Is the ESI questionnaire the future of case management?
I recently attended a seminar, co-hosted by Kroll Ontrack, Dorsey & Whitney and Pinsent Masons on the use of an electronic disclosure questionnaire in court proceedings. The questionnaire’s proposed introduction illustrates some significant changes in case management that I think will have a real impact on how we litigate.
Sustainable construction: time to get serious?
Sustainability is here to stay, but have the industry’s standard form contracts caught up? Should they be leading the charge? Are they just hanging on the coat tails of government regulation?
Is the Construction Act necessary?
Construction lawyers and construction companies now seem to take it for granted that construction contracts have to be regulated, without the freedom to contract other industries enjoy. Should that always be the case?
Alliancing: shared goals breed success
I was lucky enough to be asked to help a client recently who was setting up an alliance. I have been involved in a few of these over the years, but it was the first one which I have looked at for a while. Alliances, like framework agreements and partnering charters, have taken a bit … Continue reading Alliancing: shared goals breed success
The Olympic Stadium: a test case for NEC
If you want to see an NEC success story, then take a trip out to Stratford and have a look at the Olympic Stadium. You’ll no doubt be impressed at the results. On Thursday 29 April 2010, I (and members of the King’s College Construction Law Association) had the privilege of attending a site tour … Continue reading The Olympic Stadium: a test case for NEC
Bribery Act 2010: too many questions, too few answers?
So, the Bribery Bill is now the Bribery Act. It’s passed Parliament but is not yet in force. The “old” law is in force until then. So what is going to change? For me, the new Act poses many more questions than it currently answers. Here are a few of my concerns:
NEC v JCT: mutual trust and co-operation v good faith and spirit of trust and respect?
On Tuesday evening, Kings College London hosted the KCCLA and Sweet & Maxwell Twelfth Annual Lecture: NEC v JCT – Same problems different solutions. The lecture was delivered debate style, with Mr Justice Ramsey chairing speakers on behalf of the JCT (Peter Hibberd and Peter Aeberli) and NEC (David Thomas QC and Dr Jon Broome). … Continue reading NEC v JCT: mutual trust and co-operation v good faith and spirit of trust and respect?
NEC is the future, but how does it work in real life?
On 18 March 2010, leading speakers, from the London Olympics to Crossrail, shared their experience of how to make the NEC form work for you. Here are my highlights from the event: Introduction: the OGC’s endorsement The UK government, through the OGC (Office of Government Commerce), has endorsed the use of the NEC3 suite of … Continue reading NEC is the future, but how does it work in real life?
Not again, the staple diet of construction
Trying to understand what the words in a contract mean is what we do every day. Lord Goff said that: “In point of fact, if not the meat and drink, then at least the staple diet, of the Commercial Court can be summed up in one word – ‘construction’. Commercial lawyers, Solicitors, Barristers and Judges … Continue reading Not again, the staple diet of construction
My claim has failed. Can I sue the expert?
When I teach the RICS training for expert witnesses, the room always goes silent when I ask whether expert witnesses should be sued if they are negligent. I then say that, unlike barristers or solicitors, they are immune from such claims. Expert immunity may be a thing of the past if the Supreme Court upholds … Continue reading My claim has failed. Can I sue the expert?
Deeds of novation – or not!
To what extent is a deed of novation necessary in order to novate a contract? Can there be a valid novation without a formal deed of novation?
The judge who noticed: conditions precedent to a claim
Towards the end of 2009, I wrote a post on the tension between notice provisions and extensions of time. This elicited some very interesting comments, but, most interestingly of all, no-one said “Oh come off it – how many cases are there where the notice provision is strictly enforced?”. If courts or tribunals decline to … Continue reading The judge who noticed: conditions precedent to a claim
Time travel – adjudication under the amended Act
In December last year I was granted the unique opportunity to take part in an adjudication, which took place in 2014, sometime after the amendments to the Construction Act 1996 had come into force. My expert witness, Gary Peters, relied on the “Fagin formula” for loss and expense, while the two main witnesses, Martin Potter … Continue reading Time travel – adjudication under the amended Act
Contractual chestnuts: fitness for purpose
“The purpose of life is a life of purpose.” (Robert Byrne) It’s nearly Christmas, so why not take another look at a fine old contractual chestnut: fitness for purpose. (This blog looked a different aspect of this issue before). Fitness for purpose can get construction lawyers and their clients quite worked up, but why exactly? … Continue reading Contractual chestnuts: fitness for purpose
Should there be a time limit for claiming statutory interest?
“Dear, dear. I shall be too late.” (The White Rabbit, in Lewis Carroll’s Alice’s Adventures Under Ground.) Two weeks ago, I wrote about an interesting argument on the relationship between the “final date for payment” under a construction contract and a claim for statutory interest. This week, I look at delays in bringing a claim … Continue reading Should there be a time limit for claiming statutory interest?
Surely, statutory interest runs from the final date for payment?
If an employer fails to pay a contractor by the construction contract’s final date for payment, it should expect to be on the receiving end of a costly claim for statutory interest under the Late Payment of Commercial Debts (Interest) Act 1998.
Why adjudicate if you can use expert determination?
Here’s one way to simplify adjudication: get the adjudicator to act as an expert, let him do what he does best, avoid a mini arbitration and many of the legal challenges to adjudication…
Notice provisions and extensions of time: an inconvenient truth?
How would most contractors receive this piece of drafting? “The Contractor agrees to pay Liquidated Damages (LDs) for delay to the Employer, even though the Employer caused the delay to the Works to which those LDs relate.”
Right, wrong, creative or delusional?
…or how do we make a decision and how do we know we are right? There is a story about a student taking an exam at a university. He calls over the invigilator and says “I’m not trying to be funny, but the questions are the same as last year.” The invigilator replies: “Yes, but … Continue reading Right, wrong, creative or delusional?
Another fine mess you’ve got me into: can you pass on a criminal fine in a contract?
There is a legal textbook which illustrates the varying tests of responsibility in relation to a glass of water falling off a table. Deliberate act – a man hits the glass with a baseball bat and it falls to the ground and smashes. Recklessness – the man is dancing wildly around the room and knocks … Continue reading Another fine mess you’ve got me into: can you pass on a criminal fine in a contract?
Unreasonable skill and care: do we expect too much in a soundbite world?
When I was at university each department produced a T-shirt with what we would now call a “corporate strap-line”, intended to convey the essence of their area of expertise. I have to confess that I can’t remember what the law department’s T-shirt said; we are talking over 30 years ago. The best of all the … Continue reading Unreasonable skill and care: do we expect too much in a soundbite world?
All is not rotten: how might I use an RoT clause?
Last week, I looked at how a retention of title (RoT) clause can catch a contractor out, even if it complies with its building contract. This week, I want to look at this issue from the point of view of the supplier. I Googled “RoT” and it is (we are assured) used as a reference … Continue reading All is not rotten: how might I use an RoT clause?
Can you stop the RoT?
I have recently become telepathic. A contractor called me the other day saying that he was engaged on a large M&E contract and that one of his sub-contractors had gone into administration. He wanted advice on terminating the sub-contract and getting someone else to finish the work. I asked whether any of the sub-contractor’s suppliers … Continue reading Can you stop the RoT?
Swine flu: contracts and force majeure
This post continues from my thoughts last week. (For more general legal information on pandemic influenza, click here.) Contracts and clauses When I first started in the law, force majeure clauses were not discussed at any length in most contract negotiations. However, in recent years (and especially after the foot and mouth crisis of 2001) … Continue reading Swine flu: contracts and force majeure
Swine flu: attitude to risk and contingency planning
I felt a bit rough over the weekend and told my wife that I was a bit concerned as to whether I was a man with swine flu. The rather unhelpful riposte from the Mrs was that I may well have got the words in the wrong order. We have seen plenty of health scares … Continue reading Swine flu: attitude to risk and contingency planning
The nuclear option
Many people think that what they do is rather special and that inexperienced or untrained outsiders should not “dabble”.
Don’t waste the downturn
One of my friends owns a gym. He is currently sending out emails advising people not to “waste the downturn”. At first glance this seems to be something of a counter-intuitive message. But it isn’t and here’s why.
Can’t pay, won’t pay (yet)
I recently gave a lecture to a group of construction industry professionals on legal developments in 2008. The case that caused most debate was Alan Auld Associates Ltd v Rick Pollard Associates and another [2008] EWCA Civ 655. Termination for repeated non-payment That case concerned a consultant (Dr Pollard) working for a contractor, who in … Continue reading Can’t pay, won’t pay (yet)
Collateral damage
New builds for sale? I think that it is inevitable that a number of relatively new buildings will have to be disposed of by the present or intended occupants. Those buildings will end up in the hands of a bunch of new people ranging from purchasers or occupiers (who have acquired them at a knock-down … Continue reading Collateral damage
Construction in 2009: Time to stop talking about the credit crunch
So what’s ahead for the construction industry in 2009? As I see it there will probably be three main stories. In no particular order, these are:
Reasonable skill and care vs fitness for purpose
This particular old chestnut may not be roasting on an open fire with Jack Frost nipping on its nose (as the song goes), but it has been going for years. It’s the perennial debate about the conflict between reasonable skill and care and fitness for purpose. However, there is an interesting twist to the debate … Continue reading Reasonable skill and care vs fitness for purpose
Pedantry or precision?
There is an old joke: how many lawyers does it take to change a light bulb? Answer: what do you mean by “change”? We are often accused of pedantry but it is actually important to know what a contract means.
Dangers of direct payments
You have let a construction contract. All seems to be going well, albeit progress is a bit slow. A couple of subcontractors then come to see you: they say that the main contractor has not paid them for a while and they are thinking of suspending or leaving the site.
Time to test the late payments regime?
According to Building, the Specialist Engineering Contractors Group says that there has been a sharp rise in contractors reporting that public and private sector clients have been pushing back payments.
Where is your retention money held?
Although we are being told that the financial meltdown has been averted and that we are “only” facing a plain old-fashioned recession now I can’t help wondering whether there will be any aftershocks in the financial world.
Are you too tired to get “contractural”?
A less than serious post to kick off this blog: A Google engineer has developed a way to avoid random emailing late at night when you’re most likely to be “tired”. Jon Perlow’s new Mail Goggles application, built into Google’s GMail service, forces the user to answer basic maths questions in 60 seconds before a … Continue reading Are you too tired to get “contractural”?
