REUTERS | Sharif Karim

March 2013 digest: will the winter ever end?

Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking-Glass:

“I wonder if the snow loves the trees and fields, that it kisses them so gently? And then it covers them up snug, you know, with a white quilt; and perhaps it says ‘Go to sleep, darlings, till the summer comes again’.”

It may officially be spring, but it feels like spring is on hold this year. With biting cold winds and snow blanketing much of the country, it definitely feels more like January than March, and it looks certain that all modern March temperature records will be broken (but not in a good way). Much of the animal and plant world may sensibly still be hibernating, but that hasn’t been the case in the legal world.

As the countdown to the Jackson reforms continues, we:

While many practitioners prepare for the Jackson reforms, the courts have been considering whether:

  • The High Court was right to find an implied term not to act arbitrarily, capriciously or irrationally (it wasn’t).
  • It was appropriate to disapply the default rule regarding liability for costs on discontinuance (it was). (The claimant had sought injunctive relief to prevent a neighbour from carrying out buildings works without complying with the Party Wall etc. Act 1996.)
  • The award criteria set out in an invitation to tender complied with the public procurement procedure (it did).
  • A party had acted unreasonably in drawing up a court order (it had). A cost penalty followed.
  • A sub-contractor was entitled to recover its costs from the homeowners when employed by an insolvent contractor (it couldn’t).
  • A party could enter into a framework agreement pending the outcome of an appeal against a procurement procedure (it could).
  • It was wrong to imply certain terms into an agreement between shareholders (it was).
  • There was an implied duty to perform a distribution contract in good faith (there was).

We know adjudication enforcement proceedings continue unabated, but it seems the TCC is publishing less of its judgments. That said, during March the court was asked to decide whether:

In addition, Matt Molloy discussed the likelihood that a dispute in arbitration has already been through adjudication proceedings and what happens if an expert breaches his professional code of conduct in adjudication proceedings. Jonathan Cope looked at the various sources of guidance for adjudication users.

Amendments to the Late Payment of Commercial Debts (Interest) Act 1998 came into force during March. We updated our note, Claiming interest in construction disputes, and explained whether parties could utilise the amended Act to shorten an agreed payment cycle. BIS issued a user guide on the main changes, PLC Commercial answered a number of key questions and Simon Liddiard discussed the recovery of costs under the amended Act. While on the subject of payment, we published a new note on making direct payments to sub-contractors on a construction project.

Other issues in the news included arrests following an OFT investigation into a cartel in the construction industry, the end of the investigation into construction industry training services and offshore health and safety legislation coming into force. We also told you about the CIC BIM protocol, government proposals to expand the “one-stop shop” approach to obtaining non-planning consents, a podcast on best and reasonable endeavours and provided more details on the draft CRC Order 2013. James Levy discussed exclusion clauses after Kudos Catering (UK) Ltd v Manchester Central Convention Complex Ltd [2013] EWCA Civ 38, John Hughes D’Aeth explained the “common sense” approach to contract interpretation adopted by the TCC and we looked at examples of where NEC contracts have been considered by the courts.

During March the Chancellor delivered his fourth budget and we told you all about the construction, property, environmental and tax implications.

Finally, while on the subject of finances, we also told you about the meaning of “building materials” for VAT zero rating, gross payment status under the construction industry scheme (CIS), regulations amending the CIS regulations and using public procurement processes to deter tax avoidance.

Happy Easter!

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