Practical Law

John Steinbeck, Travels with Charley: In Search of America:

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

Just like June, July has continued to be hot and sunny and to offer us a veritable feast of sport, with the World Cup finals (and Germany as the ultimate victors), Wimbledon, international cricket and the start of the Commonwealth Games in Glasgow. If that hasn’t been enough, it is only a couple of weeks before the start of the football season and the highs and lows that brings to many each year!

If you’ve had time away from the many sporting events, you may have noticed two major events in the legal world. If not, to recap:

• Practical Law subscribers now have access to the JCT 2011 suite of contracts, along with its guidance, as specimen PDFs.
• In Denton v TH White and others, the Court of Appeal produced a new relief from sanctions test.

It may be too early to tell precisely what impact Denton will have on the case management aspects of commercial litigation, especially as the courts’ summer recess has started, but Matthew Finn has looked at its likely impact.

The courts have also considered whether:

• The contractor had validly terminated a sub-contract and was entitled to damages (it had, so it was). The court’s long and detailed judgment addresses many issues and Katy Saunders considered liquidated damages for changing key personnel, while Tim Hillier highlighted issues with good faith clauses.
• A clause requiring the parties to seek to resolve a dispute by “friendly discussion” before arbitration proceedings was enforceable (it was).
• To grant summary judgment in favour of an employer under a building contract following the near total destruction of a substantial private house (it did).
• To reject a project monitor’s claim for a contribution under the Civil Liability (Contribution) Act 1978 against the valuer (it did). Jonathan Cope considered the role of project monitors in commercial property development.
• To order disclosure of a settlement agreement referred to in Part 20 proceedings issued against a third party contractor in relation to a construction dispute (it did).
• To uphold a TCC decision that a sub-sub-sub contractor was liable to indemnify a sub-sub-contractor against damage to a development in London (it did).
• Purchasers could, in principle, claim under a new home insurance policy (they could).
• To grant a declaration regarding the completion criteria an independent tester should use under related PFI contracts (it did).

It has been another quiet month on the adjudication front, especially south of the border. Matt Molloy considered dealing with party-party costs in adjudication. He also looked at whether an adjudicator can say no to late submissions and what to do when there is a request for a split costs order.

In Scotland, the Court of Session considered whether to reject:

• An appeal against an adjudicator’s decision (it did), which Matt Molloy discussed. As we don’t often see appellate decisions in adjudication enforcement, Lady Smith’s views will be of interest to many.
• Arguments that an adjudicator’s decision was defective and enforce it (it did).

Elsewhere, Ian Clarke highlighted some of the difficulties a party may face when trying to enforce a domestic arbitral award in the UAE, Shy Jackson considered the differences between personal, contractual and tortious liability in light of Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd, Jonathan Cope discussed the meaning of “appropriate deduction” in a JCT contract following Oksana Mul v Hutton Construction Ltd and Stephen Ovenden looked at the Construction Industry Training Board’s announcement that they are simplifying the way the CITB Levy is calculated.

On the public procurement front, the courts considered whether:

• A District Council had breached EU law in the award of two procurement contracts by failing to advertise them publicly (it had).
• To allow a party to amend its particulars of claim and whether to lift the automatic suspension on the award of contracts (it did).
• The “reasonably well-informed and normally diligent” tenderer test was objective (it was).

The Cabinet office published a revised PQQ (that does not apply to construction procurements). We also provided you with June’s case digest and, in conjunction with David Gollancz, considered what needs clarifying in the Public Contracts Regulations 2014.

Other items in the news included a new fee payment service in the courts, a consultation on the construction industry scheme (CIS), a compensation scheme for blacklisted construction workers, a revised nuclear safety directive, a response to the consultation on  zero carbon homes, judgment in a claim against the Department of Energy and Climate Change (DECC) under its feed-in tariff (FITs) scheme, a consultation on the health and safety-related self-employed worker definition, an Insurance Bill (which will reform the disclosure law in business insurance), a consultation on the Social Action, Responsibility and Heroism Bill (which will change the law on negligence), an implementation note on the Equator Principles, new LCIA arbitration rules and a new construction minister.