F Scott Fitzgerald, The Great Gatsby:
“And so with the sunshine and the great bursts of leaves growing on the trees, just as things grow in fast movies, I had that familiar conviction that life was beginning over again with the summer.”
In the aftermath of the Supreme Court’s judgment in Aspect v Higgins (that there is an extended limitation period, long after the usual limitation period in contract and tort has expired), we have looked at ways for parties to address this issue in their contracts. Consequently, we have amended our professional appointments and our schedules of amendments to the JCT contracts, and provided integrated drafting notes to allow you to understand those amendments and to agree them with the other side. Michael Mendelblat has also looked at some of the issues arising and Matthew Crossley has considered some of the lessons for consultants when agreeing terms.
Cash flow may be the lifeblood of the construction industry, but adjudication is the bread and butter for many. With only two new cases this month, it may feel like that butter was spread a little thin in July, but we still managed plenty of comment (even if it wasn’t all on adjudication):
- Matt Molloy discussed Gotch v Enelco, where the court said it was not appropriate for the claimants to pursue a CPR 8 declaration, he looked at the meaning of an application for payment in Caledonian v Mar City and payment issues were also at the fore in If there was no dispute then why didn’t they pay?.
- Jonathan Cope told us about the first instalment of Harding v Paice.
- Sherlock Holmes may have said that “When you have eliminated the impossible, whatever remains, however improbable, must be the truth”, but David Pliener considered the modern approach to the conundrum of causation in fire cases.
- Technology is a main stay of modern life. Richard Dupay looked at the impact it has on construction disputes and Jennifer Varley considered electronic working in the TCC. With technology comes the threat of cyber attack, which Matthew Heywood highlighted.
- Elizabeth Repper reviewed new ADR regulations that will affect any business that trades with consumers. Among the many issues, Part 1 considered who needs to comply and Part 2 highlighted time limits, limitation and whether the process is binding.
- Michael Sergeant continued his series on variations with a look at whether there is a duty to instruct a variation.
- Good faith is increasingly featuring in judgments and Shy Jackson considered the current state of the law.
The courts have also been busy this month, with judgments in:
- SSE Generation v Hochtief (on joint names CAR insurance under NEC2).
- Portsmouth CC v Ensign (on good faith and other implied terms in a PFI contract).
- Obrascon Huarte v HM Attorney General for Gibraltar (where the contractor’s appeal was dismissed).
- Iliffe v Feltham (where summary judgment was overturned on appeal).
- Bridgland v Earlsmead (on breach of statutory duty under the Party Wall Act 1996).
- AMEC v Morgan Sindall (which considered the application of the construction pre-action protocol).
- Salt v Stratstone (on damages under the Misrepresentation Act 1967).
- Yeo v Times Newspapers (on revising costs budgets).
With such a hectic month, it is easy to forget that on 8 July we had the first Conservative budget for 18 years. We told you all about the construction aspects and published a landing page for access to all Practical Law’s coverage. Other news included CDM 2015 amendments to the ACE agreements, Rider 1 to the SCL delay protocol, a new Welsh legislation website, a consultation on ACA contracts, updated materials on NEC3, a consultation on the Posted Workers Enforcement Directive and an end to the role of Chief Construction Advisor.
Public procurement developments have included the Supreme Court’s judgment in Edenred v HM Treasury (which Michael Bowsher and Azeem Suterwalla commented on), Woods v Milton Keynes (twice) and June’s case digest.
Although the digest is usually about looking back to the previous month, this month we published our six-month case review and the Dispute Resolution and Arbitration services looked forward to the rest of 2015.
Last month we started with a cricketing reference. As we are part-way through the Ashes, it seems apt to end by suggesting the series is nicely poised (“sit down if you are two one down”, as the Edgbaston crowd sang). Hopefully, we will see a thrilling finish, just like the Tour de France and last Saturday’s Alp d-Huez stage. What a fantastic win for Froomey and his team mates.