REUTERS | Mike Segar

January 2012 digest: implied terms, party walls and procurement

Samuel Taylor Coleridge, Work Without Hope:

“And Winter slumbering in the open air, wears on his smiling face a dream of Spring!”

Before we turn our attention to events in 2012, it is sensible to start with two cases from the very end of 2011 (and ones that (almost) got away). After last month’s digest was published, Coulson J in the TCC considered implied terms in a sub-contract, withholding notices and declaratory relief under CPR Part 8. Since then, Leander v Mulalley has attracted considerable attention, both in terms of the judge’s comments on withholding notices and also its consideration (and rejection) of an implied term to proceed regularly and diligently with the works.

The other judgment that had construction practitioners expressing their views was Jackson LJ’s Court of Appeal decision in Lanes v Galliford Try. This time it was on the future of forum shopping in adjudication and apparent bias.

Turning to 2012, we published a note of what construction practitioners may expect in the coming year. We also told you about property and environmental things to look out for. January also saw us complete our suite of materials on the Party Wall Act 1996. We finished with a podcast about the Act, as well as a toolkit, a couple of quick guides and a checklist on party wall awards. Other new content included a costs management podcast, an adjudication toolkit and a schedule of construction documents.

In one judgment, a Scottish court considered an adjudicator’s breach of the rules of natural justice, severability of the decision and approbation and reprobation. Whether to “phone a friend” is likely to be a hot topic in the coming weeks.

The English courts have considered a judicial review application when homeowners were dissatisfied with the local building control officer and the scope of a solicitor’s retainer and reviewing previous advice.

Public procurement is never far from the news, and January was no different. In addition to reviewing the top cases from 2011, there were new materials on changing PFI contracts, more proposals to modernise public procurement rules (including green procurement) and judgments on setting aside a contract awardEurostar (as a contracting authority) and NHS 24‘s right to enter into a contract.

Other issues in the news included HS2, architects’ liens, RICS guidance on conflicts of interest, the government’s Red Tape Challenge and its focus on construction, litigation costs, the meaning of “construction operations” and fitness for purpose obligations.

And finally, there has been considerable media coverage over Scotland’s possible departure from the Union. The last word on the subject this month goes to Daniel Greenberg.

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