Shakespeare’s The Tempest:
“Be not afeard; the isle is full of noises,
Sounds and sweet airs, that give delight and hurt not.
Sometimes a thousand twangling instruments
Will hum about mine ears, and sometime voices
That, if I then had waked after long sleep,
Will make me sleep again: and then, in dreaming,
The clouds methought would open and show riches
Ready to drop upon me that, when I waked,
I cried to dream again.”
Whatever you thought of the spectacular opening ceremony, from Shakespearean quotes to Wiggo’s bell-ringing and from JK Rowling reading JM Barrie to the 204 copper petals, the London 2012 Olympic Games and Paralympic Games are well and truly underway. The British team has its “top four” medal target, with hopes of surpassing the 47 they won in Beijing four years ago, and the first medals have already been handed out.
During July, Berwin Leighton Paisner LLP continued its heptathlon series analysing the commercial impact of the Games from a variety of perspectives, with articles on liquidated damages clauses, recovery of exceptional losses, Sunday trading, high-profile disruption and tax exemptions for athletes.
In the TCC, it was a busy month as the summer vacation approached. Most notably, in Walter Lilly v Mackay, Akenhead J gave a judgment that is likely to be referred to time and again in future. It touched on extension of time, loss and expense, head office overheads and profits, the Emden formula, global claims, interest claims and the effect of past settlements on current litigation.
In addition, the courts considered a variety of issues, including whether:
- An adjudicator had jurisdiction to deal with part of the dispute (he didn’t, and the court severed his decision).
- An unsuccessful party may set-off against an adjudicator’s decision (twice) (it can’t and it can’t).
- A pay-when-paid clause is effective, even in an escrow arrangement (it isn’t).
- An undisclosed expert’s report should be disclosed (it shouldn’t).
- A trial judge had ordered double recovery (he hadn’t).
- A director and shareholder had standing to bring judicial review proceedings for breach of the public procurement regime in Northern Ireland (he didn’t).
- An automatic suspension of a contract award should continue under the public procurement regime (it shouldn’t).
- A developer had used due diligence (it hadn’t).
Outside the civil courts, we’ve heard about a consultation on experts in construction disputes (which we have a comment on), considered advertising in Part B procurement, looked at the net and gross basis in the context of delay and extensions of time, highlighted developments in corporate reporting on anti-corruption measures, told you about the HSE’s new fee for intervention scheme, updated you on Lion Steel’s sentence for corporate manslaughter and reported on increased government financial support for infrastructure projects. We also published a quick guide to construction insurance and a standard document for use in a public procurement market consultation exercise.
Items under discussion during July have included project managing litigation, the duty to warn, how an adjudicator deals with contracts that are not in writing, the meaning of debt in construction contracts, settlement of construction disputes, declaratory relief and adjudication, how it feels to feature in a law report and trends in ICC arbitration.
Finally, we provided you with a summary of the key cases of the last six months and also set out arbitration and dispute resolution events to look out for in the next six months, including the status of the Jackson LJ reforms.