The Old Farmer’s Almanac:
“Groundhog found fog. New snows and blue toes. Fine and dandy for Valentine candy. Snow spittin’; if you’re not mitten-smitten, you’ll be frostbitten! By jing-y feels spring-y.”
Although February is the shortest month, it often feels like one of the longest with its seemingly endless cold, grey days. Spring will (hopefully) soon be here and, while we look forward to warmer days, we can read about events later in the year, such as the EU referendum (or Brexit) in June.
After a quiet January, the TCC handed down several interesting judgments this month, including two dealing with payment. One looked at what happens when a payment schedule expires but the work is on-going (and PC has not been achieved), which both Brenna Conroy and Jonathan Cope discussed. The other considered non-compliant payment terms and the need to imply a term (but not from the Scheme for Construction Contracts 1998).
On the adjudication front, the court considered whether:
- An adjudicator could adjudicate on more than one dispute at the same time without the parties’ consent (he couldn’t).
- There should be a stay of enforcement due to manifest injustice (no, it was not a “rare case” where there should be a stay).
- There was any merit in the challenges to enforcement (no, they were described as “hopeless”).
- The adjudicator was right to decide a letter of intent was the parties’ contract (he was, so subsequent adjudicators were bound).
A number of contractual issues were also under consideration, including whether a contractor had accepted liability under the NHBC new home warranty (it had), a claim made under an on-demand bond was valid (it was) and UCTA applied to a sub-contract (it did). We also learnt about new features in JCT 2016 and CIOB published user notes for the Time and Cost Management Contract 2015 (TCM15).
Elsewhere, the High Court removed an arbitrator for apparent bias, the Crown Court fined Sweett Group plc £1.4 million under section 7 of the Bribery Act 2010 and the Chancery Division gave guidance on using the Shorter Trials Scheme (STS). David Pleiner considered the review of the civil courts and the suggestion that the High Court divisions might be merged.
On the opinion front:
- Julie Scott-Gilroy discussed the Scottish courts’ willingness to order specific implement to compel a party to provide an executed collateral warranty.
- Oliver Pearson highlighted the dangers of professionals giving advice to friends.
- Jonathan Cope considered using arbitration in construction disputes.
- Stephen Bickford-Smith looked at the current trend for basements and the party wall implications.
- Tom Owen guided you through unsigned deeds and formalising other documents.
- Allen Dyer looked at the issues arising in successive adjudications if the dispute is “the same or substantially the same”.
- Matt Molloy looked at the rise in mediation in construction disputes and some of the issues when an adjudicator uses an assistant.
- Elizabeth Stonebank considered implied terms in construction contracts.
In public procurement, the Concession Contracts (Scotland) Regulations (and some Amendment Regulations) were published, the government responded to a consultation on the new Concessions and Utilities Directives, the Cabinet Office published a policy note, Johnson & Johnson challenged a procurement decision and we published January’s procurement case digest.