Patrick Stewart, on contract negotiations:
“The studio have always claimed that the ship is the star of the show, especially when they are renegotiating contracts.”
NEC4 isn’t quite in the same league as the USS Enterprise, but July was all about NEC4 at Practical Law Construction, as we worked hard to prepare new materials including notes on the new suite of contracts, the key changes in NEC4, aspects of working under an NEC4 contract and the role of the Project Manager (plus a checklist on the tasks for the Project Manager). Iain Suttie told us it’s about “evolution, not revolution”, but wondered whether it is really “a bit of a tock”. We haven’t finished yet, so there is plenty more still to come.
You can find all our NEC3 and NEC4 resources by using the NEC contracts toolkit.
End of term always delivers a raft of cases, and this month was no different:
- The TCC reminded us that parties can enter into an adjudication agreement by conduct, it construed a standstill agreement and refused to strike out certain claims, found a bank’s claim against a monitoring surveyor failed, held an employer was in repudiatory breach of contract for dismissing the contractor for alleged defects, held that a design and build contractor was responsible for defective glass panels and granted relief from sanctions despite there being a serious default.
- Other courts considered the costs of completing works following termination, that permission to adduce new expert evidence was not conditional on the disclosure of previous expert evidence, the disclosure of a judge’s handwritten notes, a professional negligence claim against solicitors, the inadvertent disclosure of privileged material and whether the parties intended to create legal relations over a pint or two in the pub!
- On the public procurement front, the TCC set aside an automatic suspension, ordered the disclosure of documents and published guidance for public procurement disputes.
We told you what to expect in the second half of 2017 on the arbitration and dispute resolution front (and learnt that Coulson J will become an LJ in the autumn), and also looked back to the key cases of the quarter.
On the comment front, when it comes to adjudication, Matt Molloy cautioned against burying your head in the sand and illustrated the perils of a party trying to cherry pick its defence, and Jonathan Cope pondered whether adjudicators should ask the parties questions. Jonathan also cautioned parties about the quality of their expert witnesses, John Denis-Smith looked at mitigation in the “New Flamenco” dispute, Paul Fisher considered some of the consequences of the economic blockade of Qatar, Simon Liddiard discussed the giving of notices following Glen Water v Northern Ireland Water, and David Pliener revisited the meaning of reasonable skill and care.
In other news, the Repeal Bill (now called the Withdrawal Bill) was published and there was a report on the construction industry’s skills needs after Brexit. Following the Grenfell Tower fire, we saw a circular on the recladding of tall buildings, an industry response group formed, a Building Safety Programme established and an independent review of building regulations and fire safety launched. We also saw the government’s response to the Farmer review, the IPA’s annual report on major projects and the launch of new international measurement standards for construction.
And finally, October may seem far away but, before we know it, the school holidays will be over, the Michaelmas court term will have started and it will be time for our Construction Law Conference again.
