REUTERS | Thomas Peter

March 2014 digest: spring time

Percy Bysshe Shelley, The Question:

“I dreamed that, as I wandered by the way, bare winter suddenly was changed to spring.”

This month, with the vernal equinox on 20 March, winter officially turned to spring in the northern hemisphere. It was a time when day and night were the same length and it heralded the start of warmer and sunnier days (hopefully). We also lost an hour’s sleep!

March is also budget time. This year saw the Chancellor deliver his fifth budget and we told you all about the construction, property, environmental and tax announcements. You can find out more on our budget page, including comments from leading tax experts.

With spring comes new beginnings. This month we published notes on project bondssecurity in real estate development finance and a toolkit on executing deeds and documents. We also told you about Sweet & Maxwell’s professional development service and its partnership with Keating Chambers on construction law webinars, giving you free access to a webinar, Construction Law: Year in Review by Tom Lazur and James Thompson.

The Jackson reforms are almost a year old now and the Civil Justice Council (CJC) is looking at their impact, with a conference and submissions from the Bar Council. Clive Freedman is also conducting a survey on the new disclosure rules. The number of cases in the post-Jackson world are too numerous to mention here, so see this guide. However, Richard Osborne discussed limitation and extensions of time for service in a post-Mitchell world and Alexandra Clough considered whether the court has to sanction all extensions to the litigation timetable.

The courts have also been considering whether:

  • An engineer had breached its contractual duty of care, causing a property developer to suffer losses (it had, but it wasn’t shown the breach caused the losses).
  • Among other things, a building contractor’s cause of action in tort against its sub-contractors accrued on or before practical completion (it did).
  • A contract’s limitation of liability clause prevented the court granting an injunction (it didn’t).
  • A failed assignment gave rise to an implied trust in the context of a claim by a factoring company relating to construction sub-contracts (it may, on the facts).
  • An employer was in repudiatory breach for its puported termination of a contract on an engineering project (it was).
  • To grant a number of preliminary issues (relating to partnering obligations, limits of liability, exclusions of liability and the absence of fiduciary duties) in favour of one of the parties (it did).
  • A party wall surveyor had refused or neglected to act effectively under the Party Wall etc. Act 1996 (he hadn’t).

However, March was a quieter month than some as far as reported adjudication cases go, although a judgment was published in which the court was asked to decide whether an adjudicator had jurisdiction to order payment of money to a third party, in this case an assignee of the referring party (he didn’t).

In addition, with regard to issues that arise in adjudication:

  • David Sheard considered whether, in court proceedings following an adjudication, the burden of proof should be reversed.
  • Matt Molloy looked at the multiple-contract point in jurisdictional challenges and suggested there are advantages in using hot-tubbing with factual witnesses in adjudication hearings.
  • Jonathan Cope looked at how the courts in London and Edinburgh disagree on the application of the European Convention on Human Rights (ECHR) to adjudication and considered Ireland’s Construction Contracts Act 2013.
  • Matthew Crossley highlighted the problems that may arise if parties fail to execute novation agreements.

In environmental and regulatory news, we saw more amendments to the Building Regulations 2010 (SI 2010/2214), publication of the Welsh low carbon delivery plan, heard news that, following the government’s housing review, the Code for Sustainable Homes is likely to be scrapped and that there is yet another nuclear consultation. On the public procurement front, we told you about the new EU directives coming into force and published a three-month policy review. Finally, Sam Snell considered ethics in international arbitration, Michael Mendelblat reviewed the amendments to the ICC Infrastructure Conditions of Contract and we told you that guidance on the Equator Principles had been published.

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