REUTERS | Ahmad Masood

February 2012 digest: spring is in the air

Percy Bysshe Shelley, The Sensitive Plant:

“And spring arose on the garden fair, like the spirit of love felt everywhere;
And each flower and herb on earth’s dark breast rose from the dreams of its wintry rest.”

Spring is here, with the first signs of flowering bulbs, buds breaking through and birdsong in the air. With thoughts of spring, our attention during February has been on matters environmental, including new guidance (and a revised definition) on contaminated land and a new waste water national policy statement. We have also seen a number of consultations that will have an environmental impact, including on changes to the Building Regulations 2010, the building control system and energy efficiency in buildings.

It may have been a quiet month for the London TCC, with only three reported judgments, but one of those is certain to have a considerable impact on practitioners. For those who may have missed the news, (subject to a number of exceptions) the TCC has issued guidance that claims under £250,000 should no longer be issued in the High Court TCC in London. People have already been discussing what this means for construction claims generally and its potential impact on adjudication.

Costs management has also been in the news, with an interim report on the TCC’s pilot, the publication of part two of PLC’s podcast and some thoughts on why it matters that people participate in the pilot.

Elsewhere the courts considered issues such as the use of expert evidence in professional negligence claims and claiming back overpayments under the NEC3 ECC. We have even had the court ordering service of a claim form by Facebook.

On the subject of standard form contracts, the JCT published a named specialist update, the NEC published a works information guide for the ECC and our materials on architects certificates and the FIDIC Pink Book were reviewed. We also published step-in rights for use with a development agreement, development finance clauses for a facility agreement and considered the difference between “reasonable skill and care” and “all reasonable skill and care”.

Adjudicators’ breaches of the rules of natural justice always attract attention and comment, and the adjudicator in Herbosh-Kiere v Dover was no different this month. The same issue was also before the TCC, although this time the court held the adjudicator didn’t do anything wrong. The RICS has issued guidance on bias for dispute resolvers to try to limit some of the parties’ concerns.

Other issues attracting comment this month included frustration and force majeurealliancing, the interplay between the Limitation Act 1980 and adjudication, appointing a professional consultant, BIM, arbitrating in Hong Kong and choice of law clauses as Welsh legislation expands.

Finally, if you or one of your colleagues is new to construction, check out our training materials. They may just contain the answer you are looking for (or at least point you in the right direction).

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