Thomas Carew, A Song:
“Ask me no more where Jove bestows, when June is past, the fading rose;
For in your beauty’s orient deep, these flowers, as in their causes, sleep.”
June represents the start of summer, with roses in bloom and the summer solstice. June 2014 has been one of the warmest on record, which is good for the sporting events that are ubiquitous with the summer months (think MCC ties and fancy dress at the cricket and strawberries and cream at Wimbledon). This year we have also had the World Cup to entertain us. While some football fans will be disappointed their team didn’t make the knock out stages, others are just enjoying what is a feast of footie each day after work.
On the work front, the Queen’s Speech set out the government’s legislative programme for the 2014-15 Parliamentary session, including the various bills that will be introduced. We told you about the property and environmental implications, along with news that negligence law is going to be revised. The Infrastructure Bill 2014-15 was subsequently introduced into Parliament and we told you about the property and environmental aspects of that.
Although we had no adjudication judgments to write about in June, David Robertson discussed the global growth of statutory adjudication and why it is good news for the construction industry and Jonathan Cope considered whether legal advice privilege applies to claims consultants.
June also saw a number of cases dealing with the aftermath of Mitchell. While there were too many to mention individually, two judgments stand out because the court held that it should grant relief from sanction for the late filing of a costs budget and that a costs draftsman’s signature on a costs budget did not render it a nullity. The Court of Appeal also heard the appeals in three Mitchell-related cases. Judgment is awaited, but practitioners are hoping for clarity on the scope of the applicable principles in relief from sanctions applications. While we await the outcome, Peter Brogden considered what happens in the post-Mitchell world when you serve witness and expert evidence late.
Elsewhere, the courts considered whether:
- Indemnity costs were payable because of a party’s unreasonable refusal to mediate (they were), which Elizabeth Repper discussed.
- The term “appropriate deduction” in clause 2.30 of a JCT contract meant “a deduction which is appropriate in all the circumstances” (it did).
- A landower had a duty to engage an arboriculturalist to inspect trees on its land (it didn’t).
- A deed was an indemnity, not a guarantee (it was).
- The Late Payment of Commercial Debts (Interest) Act 1998 applied to a charterparty providing for English law and London arbitration (it didn’t).
- A party could instruct a new expert witness (it could).
- A supermarket could claim pure economic loss in a claim regarding a defective car park (it couldn’t).
Akenhead J’s judgment in Obrascon v AG of Gibraltar was also in the news, with David Robertson looking at when a contractor must give notice of an entitlement under FIDIC’s condition precedent clause and Matt Molloy considering the impact that waiver and estoppel arguments may have on a condition precedent clause to rebut its finality. Matt Molloy also considered expert evidence, Jonathan Cope highlighted some of the difficulties with witness evidence (and urban gulls in the breeding season), Shy Jackson looked at whether clause 10.1 of NEC3 serves any practical purpose and Edward Smith explained what general counsel really want from the law firms they instruct. Some practitioners may not like being compared to new car tyres, but it certainly makes for an interesting read!
Other items in the news included guidance on managing arbitration and bribery, CEDR’s updated model mediation rules, a new note on damages in tort, consultations on an Insurance Contracts Bill and a sustainability standard for new homes and, on the public procurement front, we told you about May’s case digest and that the Procurement Reform (Scotland) Act 2014 received Royal Assent in Scotland.
Sadly, in June, Lewis Silkin announced the passing of James Levy. As well as being a popular contributor to Practical Law Construction, James was also a former colleague and friend. As Lewis Silkin observed, James had a unique and unforgettable personality, with a quick wit and a playful sense of humour. He will be greatly missed and our condolences go to James’ wife Lene and his family and friends.
