Robert Louis Stevenson, A Christmas Sermon:
“To be honest, to be kind – to earn a little and to spend a little less…”
These words may have been written at the end of the nineteenth century but still ring true today, especially in light of the Chancellor’s latest spending review. While he may argue he has “…taken our economy back from the brink of bankruptcy…”, it may not feel like that for the many affected by the latest round of cuts. However, one area to benefit was infrastructure, with the focus on capital investment in transport infrastructure. Another was energy. Earlier in the month, the Treasury had reported on infrastructure costs and we saw further guidance on development consent for infrastructure projects. It seems infrastructure is flavour of the month, for a month at least.
The Jackson reforms came into force on 1 April 2013 and already we are seeing the implications of the changes. One element of the reforms, costs management, is attracting considerable attention, particularly in the TCC, with judgments considering whether:
- A party could apply to revise its approved costs budget after trial (it couldn’t).
- The court could make a summary assessment of costs after trial based on the approved costs budget (it could).
Coulson J is currently chairing a consultation on whether there should be any exemptions from costs management (including claims over £2 million in the TCC) and what other types of claim (such as CPR Part 8 applications) should be excluded. Practical Law will be responding to the consultation and would like to hear your views. For example, do you agree that adjudication enforcement proceedings should be part of the costs management regime?
Elsewhere, the courts have considered a variety of issues, including whether:
- A landlord was in repudiatory breach of an agreement for lease when it delayed construction of a development due to difficulties obtaining finance (it wasn’t).
- An exclusion clause and a cap on liability were reasonable under UCTA and a clause allowing a party only one year to make a claim and an exclusion of indirect loss was effective (they were).
Adjudication decisions were thin on the ground in June, but Matt Molloy discussed the reasoning of judges, arbitrators and adjudicators and the parallels between recusal applications and jurisdictional challenges. Jonathan Cope looked at adjudicators making costs decisions and whether surveyors are caught by section 104 of the Construction Act 1996. Other items under discussion included:
- Reasonable endeavours and due diligence by Jancyn Gardiner.
- Section 106 of the Building Act 1984 by Samuel Townend.
- Alliancing and collaborative working by Shy Jackson.
- Delay and repudiatory breach of contract by James Levy.
- Managing quantum experts in the TCC by Nicola Thompson.
- Retention of title clauses by Michael Mendelblat.
- Making head office overhead and profit claims by James Ladner.
- Mediation of neighbour disputes by Elizabeth Repper.
New content this month included notes on the RIBA Plan of Work 2013, execution of deeds and documents, NEC3 ECC April 2013 edition and planning applications. We also updated our construction enquiries before contract and suite of NEC3 materials to reflect the NEC3 April 2013 editions.
Other items in the news included the Construction Products Regulations 2013 (which are in force from 1 July 2013), the difference between section completion and partial possession, whether a security database was a blacklist (it wasn’t), an updated code for Japanese knotweed, revoking site waste management plans, VAT zero rating and extending the NSIPs planning regime. On the public procurement front, we considered completing an OJEU notice, provided a round-up of May’s case law, told you about a new best practice guide and a new unit to represent government on PF2 projects.
Finally, as we are already halfway through the year, Practical Law’s Dispute Resolution and Arbitration teams have been looking forward to the rest of the year (and beyond). More limited horizons involve the rest of Wimbledon and the sound of leather on willow, as we settle down for the forthcoming Ashes.