REUTERS | Heinz-Peter Bader

February 2013 digest: snowdrops and spring

John Steinbeck:

“What good is the warmth of summer, without the cold of winter to give it sweetness.”

These words may seem apt this month, with its cold grey days. Snowdrops have appeared, which is a sure sign spring is on its way. While we wait for longer, warmer days, we also await the “big bang” of the Jackson reforms (on 1 April 2013).

In preparation for that, during February we told you about the Civil Procedure (Amendment) Rules (all 50-odd pages), the PD making document (all 80-odd pages), the transitional provisions for the new proportionality test and exceptions to the costs management regime. Ben Roe told you about the principal changes to litigation funding and both Michael Mendelblat and James Bickford Smith discussed the implications of Henry v News Group on the new costs regime. We also told you what else to expect from PLC over the next few weeks.

While on the topic of litigation, February has seen the courts dealing with a variety of issues, including whether:

  • A seller was entitled to keep instalments paid and to receive from the buyer sums outstanding at the date of termination of the sale agreement (it was).
  • Parties to an arbitration seated in England were entitled to apply to the Zambian courts for interim or conservatory measures pending the appointment of the tribunal (they were).
  • An exclusion clause that expressly excluded liability for the supplier’s loss of profits applied where the customer had refused to perform the contract (it didn’t).
  • A developer was entitled to claim damages for loss of value of land due to delays in the project (it was). Anna Laney discussed whether this is the end of SAAMCo.
  • Was a homeowner a developer for the purposes of the Defective Premises Act 1972 (it wasn’t).
  • Was a roofing contractor liable for a fire at a factory (it was).

The courts have also:

  • Considered the meaning of a guaranteed maximum price (GMP) clause, rejecting a challenge to a dispute review board’s decision in the process.
  • Rejected a challenge to an arbitrator’s decision, refusing relief under the compensation event provisions of a contract based on the NEC3 Engineering and Construction Contract (ECC).

However, it looks like it will be the courts of England and Wales for a little while longer.

We may not have had an adjudication enforcement judgment to report on, but Matt Molloy discussed the binding nature of adjudicators’ decisions and adjudicator nomination, both issues coming from the judgment in Arcadis v May and Baker. He also looked at adjudicator bias. Other topics under discussion included appointing delay experts by Sally Kerridge and fraudulent misrepresentation in construction disputes after Sear v Kingfisher by Jonathan Cope.

On the contract front, we discussed development management agreements and considered whether an email is “in writing”. We also told you about the new IChemE 2013 contracts, Terry de Souza considered audit clauses after Transport for Greater Manchester v Thales Transport and Khalid Ramzan discussed the BIM information manager. We also highlighted some of the intellectual property issues, beyond copyright, that can affect professional appointments.

The government’s Red Tape Challenge and health and safety review continues unabated, with details of the building and construction regulations that will be scrapped, details of the ACoP review and both the government and Professor Lofstedt’s progress reports published.

Public procurement is seldom out of the news and February was no exception. This month, we saw a discussion on selection and award criteria under the public procurement rules from Warsha Kale and Stuart Stock, guidance on supplier financial risk, plans to avoid tax avoidance in public procurement policy, an update from Nick Maltby on developments in the PPP market since September 2012 and a High Court ruling that a procurement claim was out of time or unfounded.

On the environment and regeneration front, we’ve had more guidance on the Green Deal as the provisions were approved and came into force. The Welsh are consulting on site waste management plans (SWMPs) at a time when England is getting rid, and timber regulations have been made. We also told you what building operations are, all about NHBC and contaminated land in new builds and English Heritage’s revised toolkit for development projects. There has also been further clarification regarding the new EPC regulations (on enforcement and part buildings).

And finally, leave to appeal Akenhead J’s judgment in Walter Lilly v Mackay and another has been refused. At the time we said:
“The breadth, detail and analysis of the judgment means it will undoubtedly be referred to in future TCC litigation.”

One wonders how long we will have to wait.

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