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December 2015 digest: adjudication, payment and a quiz

William Shakespeare, Sonnets:

“How like a winter hath my absence been, from thee, the pleasure of the fleeting year!

What freezings have I felt, what dark days seen! What old December’s bareness every where!”

It was more than 40 years ago that Lord Denning said that cashflow was the “lifeblood” of the construction industry. It still is, and non-payment is still an issue (as so many adjudication enforcement cases testify). Recently the TCC has been looking at payment and (specifically) the consequences of failing to serve a pay less notice. Payment issues were at the fore of the dispute in RMP Construction Services Ltd v Chalcroft Ltd.

Adjudication enforcement cases rarely make it to the appellate courts and so, when one does, it usually generates considerable interest, especially when Jackson LJ is the presiding judge. That was the case this month with Harding v Paice (which was also to do with payment notices), and which David Sears QC and Charles Pimlott discussed, along with Jonathan Cope.

In a similar vein, we seldom see the JCT home owner contracts’ adjudication scheme before the courts. Other adjudication news included Matt Molloy looking at section 105(2) of the Construction Act 1996 and David Kirkpatrick discussing costs recovery in adjudication under the Late Payment of Commercial Debts (Interest) Act 1998.

Coulson J’s substantive judgment in Van Oord UK Ltd v Allseas UK Ltd was handed down last month, which Matt Molloy and Phillip Parrott have both commented on. This month saw the costs decision and comment from Jennie Wild.

Another appellate case that has generated comment from Matthew Finn is the Supreme Court’s decision in Marks and Spencer v BNP Paribas Securities, which has turned back the clock on the law on implied terms.

The courts frown upon parties that unreasonably refuse to mediate and impose costs sanctions. Reid v Buckingham Healthcare is the latest in a long line of cases, which Elizabeth Repper has discussed.

If you don’t know a “DE defects exclusion clause” from a “LEG defects exclusion clause”, check out Paul Reed QC’s new note on contractor’s all risks (CAR) insurance, or you may be interested in Charlie Thompson’s discussion on joint names insurance. Alternatively, the NEC’s early contractor involvement clauses may be of interest. Katie Parkinson looked at the Business Contract Terms (Restrictions on Assignment of Receivables) Regulations 2015 (which will affect construction contracts and the assignment of invoices), and Athena Markides highlighted the interplay between the Civil Liability (Contribution) Act 1978 and a limitation of liability clause in a professional appointment. Limitation and exclusions of liability were also before the TCC in Persimmon Homes v Ove Arup & Partners.

There was lots of public procurement news this month, with a policy note on using EU standard forms, November’s case digest, guidance on sub-contracting provisions, details of the new procurement thresholds, a discussion of the “living wage” requirements in public procurement contracts and the Court of Appeal confirming that damages are not discretionary when there is a breach of the procurement rules.

In other news, we saw a new PD 5B on email communications with the court, a recommendation that there’d be no ACoP for CDM 2015, a consultation on Part R of the Building Regulations 2010, a crane company found guilty of corporate manslaughter and fined £700,000 (plus £200,000 costs), another “red tape” review of house building regulations, commitments to nearly zero carbon buildings, VAT treatment of holiday homes and, separately, the conversion of partially non-residential property, draft CIS regulations, details of the privatisation of GIB and an alliancing code of practice.

Finally, we leave you with our Christmas quiz, where you can test your knowledge on events in 2015, such as whether Santa should pay his Christmas parking fine.

Merry Christmas and a happy new year from Practical Law.

Practical Law Monthly digest

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