The Clash famously sang, “Should I stay or should I go now?”. In light of the Supreme Court’s Article 50 judgment and the subsequent news coverage, one might wonder if that applies to Brexit and should be “Will we stay or will we leave now?”. As the saying goes, only time will tell and, in the meantime, we should look at other events in January.
We started the month by telling you what to expect in 2017 (as did Jonathan Cope) and ended the month highlighting the changes to our note on payment under the Construction Act 1996. In the middle, we published a note on the key changes to the JCT Intermediate Building Contract 2016 (IC 2016), our schedule of amendments to the IC 2016 and told you we’d updated our pre-construction services agreement (PCSA) so that it is suitable for use with the JCT Design and Build Contract, 2016 edition. We don’t know when the rest of the JCT 2016 will be published, but we know new ACE professional appointments have been.
The courts got off to a flying start in 2017, with several interesting judgments:
- In adjudication, O’Farrell J decided that the second adjudicator was not asked to decide the same dispute as the first adjudicator (which Jonathan Cope discussed) and an employer had served the payment and pay less notices late, which meant the adjudicator’s decision was enforced. Coulson J also looked at a novel point under Schedule B1 to the Insolvency Act 1986 (which Crispin Winser highlighted).
- On payment, Alexander Nissen QC explained the requirements for a valid pay less notice, which Jonathan Cope considered. (BEIS also published its guidance to reporting on payment practices and performance.)
- Causation was under fire in a professional negligence claim. Matt Molloy discussed its similarities to Cluedo and Michael Mendelblat referred to the Sherlock Holmes causation test.
- The Court of Appeal looked at the meaning of “as soon as possible” in an insurance policy and also the test for implied terms.
- Elsewhere, a contractor was not in breach of its duty of care in relation to a collapsed tunnel, Fraser J awarded damages for a failure to award a contract to the most economically advantageous offer, Coulson J granted declarations that all financial claims fell within a liability cap and the Commercial Court held that on demand guarantees are not subject to the doctrine of strict compliance.
On the comment front, John Hughes-D’Aeth looked at alliancing using NEC3, Matt Molloy considered the end of a Caribbean dream in Harlequin v Wilkins Kennedy, Elizabeth Repper provided a mediation case law update, Elizabeth Stonebank discussed guaranteed maximum price contracts, Iain Murdoch referred to a conference on expert evidence, and Edward Davies considered ethical policies.