Lewis Carroll, Alice in Wonderland:
“‘Take some more tea’, the March Hare said to Alice, very earnestly.
‘I’ve had nothing yet’, Alice replied in an offended tone, ‘so I can’t take more’.
‘You mean you can’t take less’, said the Hatter: ‘it’s very easy to take more than nothing’.
‘Nobody asked your opinion’, said Alice.”
Some may feel that this month’s budget was a bit like Alice’s exchange. There was more in it for some, less for others. As we said at the time, we are scratching our heads to find a sweetener for the construction industry, although those who like to pour some sugar in their tea (or coffee) may have to wait a while before they are subject to the new tax. For all the other budget-related news, see our budget landing page.
Prior to the budget, the National Infrastructure Commission (NIC) published reports on the transport needs of the north (including HS3) and London (including Crossrail 2). After the budget, these were followed by the government’s Construction Strategy and its National Infrastructure Delivery Plan.
The jurisprudence on the meaning of the Construction Act 1996’s payment provisions continues to grow, with Carr J considering the validity of a contractor’s interim application for payment. John Hughes D’Aeth, Iain Murdoch and Matt Molloy all looked at the implications arising from Manor Asset v Demolition Services, while Daniel Cashmore considered the use of payment schedules following Grove v Balfour Beatty.
No new adjudication enforcement cases were reported this month, but we still had plenty of comment, with Matt Molloy looking at multiple disputes and the meaning of paragraph 8(1) of the Scheme for Construction Contracts 1998 and whether a paying party would suffer manifest injustice if it paid. Jonathan Cope discussed whether the same dispute had been referred to adjudication previously and unmeritorious enforcement challenges.
Some interesting issues have been before the courts this month, with the:
- Supreme Court considering an employer’s vicarious liability for an employee.
- Court of Appeal approving the test for admissability of deleted words as an aid to construction.
- Court of Appeal considering costs budgets (in the context of a security for costs application) and the Chancery Division considering costs management and proportionality in a £16 million claim.
- The Court of Appeal considering the measure of damages in a negligence claim against solicitors.
- The TCC considering an employer’s liquidated damages claim under an amended FIDIC Yellow Book.
- The Inner House of the Court of Session considering the validity of a claim under a performance bond.
18 April 2016 is an important date for public procurement and this month saw the Concessions Contracts and Utilities Contracts Regulations finally published, along with some Amendments, Repeals and Revocations Regulations. In Scotland, the Procurement (Scotland) Regulations were published, along with some guidance on them. Elsewhere, we published a public procurement case digest and policy review, the Court of Session considered Shetland Line’s claim regarding ferry services to the Northern Isles, and Michael Bowsher QC pondered the impact of Brexit on procurement law.
There was plenty of comment this month, with:
- Michael Sergeant’s latest instalment on variations, this time looking at oral instructions.
- Mark Briggs’ discussion of Part 36 offers after Jockey Club Racecourse Ltd v Willmott Dixon Construction Ltd.
- David Sheard’s review of Burgess and another v Lejonvarn, and the finding of liability in tort.
- Michelle Rousell highlighting the need for transparency to avoid arbitrator or adjudicator bias.
- Paul Walsh’s look at “no blame, no fault” provisions in alliancing contracts.
- Ian Suttie’s discussion on risks that face construction lawyers (and whether they play it too safe).
In other news, the CIS compliance test was changed and relaxed, new EPC Regulations were laid before Parliament (with consequential amendments to the Building Regulations), the Welsh are consulting on sustainability changes and the Party Wall etc. Act 1996 was amended to allow electronic communication.
And finally, it’s all in the meaning of a word, especially when that word is “architect“. Just ask Brighton’s metalcore band, Architects.
