William Shakespeare, Sonnet 18:
“Shall I compare thee to a summer’s day? Thou art more lovely and more temperate;
Rough winds do shake the darling buds of May, and summer’s lease hath all too short a date.”
We ended last month’s digest with a reference to the weather. It seems our jubilation at the sun’s return may have been short-lived, with plenty of rain, a late spring and little warmth to speak of over the last few weeks. If the weather kept you indoors, there has been plenty to read during May:
- We have continued to update our materials to be BIM-compliant, with integrated drafting in the JCT schedules of amendments, professional consultant’s letter of appointment and our copyright licence. We also published a BIM toolkit and BIM podcast, featuring Stuart Pemble.
- On the international front, the first editions of the Energy and Natural Resources and the Public Procurement multi-jurisdictional guides were published. We also told you about the latest Equator Principles.
- Other new content included warranty provisions for a share purchase agreement and a note on the CIOB Contract for use with Complex Projects (CPC 2013).
- We told you about priority of documents clauses and payment under the Scheme for Construction Contracts 1998, Shy Jackson considered the importance of punctuation in drafting contracts, Hannah Crockett looked at whether construction contracts should include good faith clauses and Jonathan Cope considered the administration of variation clauses in an engineering contract.
In adjudication, the TCC has considered whether:
- There was an implied term to have an adjudication dispute resolved in the courts (there wasn’t). Isabel Hitching commented on the judgment.
- An express good faith clause applied to a termination clause in the parties’ partnering contract (it didn’t), which Jonathan Cope discussed.
- The adjudicator breached the rules of natural justice when he interpreted the compensation events clause in the parties’ NEC3 sub-contract (he didn’t). Matt Molloy discussed an adjudicator using his own knowledge and experience in light of this judgment.
We also had a discussion from Matt Molloy on statements of fact in adjudicators’ decisions.
In the courts, issues under consideration included whether:
- A signatory was contracting personally (he was).
- To uphold the TCC’s ruling that the defendant was not liable for a fire caused by hot work it carried out at the claimant’s aggregate processing plant (the Court of Appeal did).
- A property developer landlord was liable for breach of sale agreements and repairing covenants, and the architect was in breach of its duty of care to the purchasers (they were).
- To uphold the High Court’s decision that an all monies guarantee was not discharged by variation of the pre-existing underlying contract (the Court of Appeal did).
- The arbitrator’s reasons were adequate (they were, just).
The Jackson reforms came into force last month. Costs management is an important part of the reforms and during May:
- Ramsey J confirmed that the £2 million exclusion is under review.
- Tom Bain discussed the implications of the judgment in Murray and another v Neil Dowlman Architecture Ltd.
- The Court of Appeal called for further guidance on the correct approach to costs budgets.
- The final report on the pilot in the TCC and Mercantile Courts was published.
We saw the long-awaited Jackson ADR Handbook published, which Elizabeth Repper told you about it. Master of the Rolls, Lord Dyson also announced that five judges (including Jackson LJ) have been appointed to deal with appeals arising from the reforms.
Public procurement is often in the news and during May we published a policy review, April’s case review, saw guidance on procurement for growth and told you that our note on public procurement and development agreements had been revised by David Gollancz.
During May, the Growth and Infrastructure Act 2013 and the Enterprise and Regulatory Reform Act 2013 both received Royal Assent. Other items in the news have included HS2, Crossrail 2, Hinkley Point C nuclear development, the aggregates, cement and ready-mix concrete market, a Welsh building regulations consultation, extended permitted development rights and planning for NSIPs.
Let us hope the sun returns soon and definitely in time for the start of the Ashes tour in early July.
