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May 2014 digest: all change at the TCC

Robert Louis Stevenson, Epilogue of the Cigar Divan:

“These are my politics; to change what we can; to better what we can; but still to bear in mind that man is but a devil weakly fettered by some generous beliefs and impositions.”

Although last month’s digest was all about change, an important change for construction litigators took place this month with the publication of the third revision of the TCC Guide. For those familiar with the TCC, you will know that the last revision (in October 2010) incorporated many of the recommendations in the Jackson report, long before they saw the light of day in the CPR “revolution” of April 2013. However, many others were missing, but not any more. This latest revision has many minor changes scattered throughout and several new and significant points are addressed, such as costs management (including costs budgets), menu options for disclosure and the e-disclosure protocol.

To make it easier for you, we published a note explaining what the key differences from the second revision are. We also published new notes on costs management and disclosure.

As Edwards-Stuart J, Judge in Charge of the TCC and the architect of the changes, commented:

“The third revision reflects changes in practice over the past three years and incorporates changes in practice that have been introduced following the recommendations in the Jackson Report. The most significant changes are in relation to costs and the need for proportionality at all stages of litigation. There is also a recommended protocol for dealing with electronic disclosure. This revision reflects extensive input from practitioners, for which I have been very grateful. The TCC Guide continues to provide essential guidance on best practice for users of the TCC in London and at the regional centres.”

From a practitioners perspective, both Claire McNamara and Paul Bury explained the highlights and key issues.

The cases continue unabated in the aftermath of Mitchell (for example, Michele De Gregorio discussed the Court of Appeal’s judgment in Chartwell v Fergies). To help keep you abreast of them all, we published a note on relief from sanctions. We also told you about buffer orders, which come into force next month, and have been endorsed by Jackson LJ.

Elsewhere, the courts have considered whether:

  • To dismiss a claim for repudiatory breach of an innominate or intermediate term (it did).
  • To dismiss an application to set aside an order giving permission to enforce a New York Convention award under the Arbitration Act 1996 (it did).
  • To reject an appeal in a claim for compensation under section 106 of the Building Act 1984 (it did), which Samuel Townend explained.
  • Certain terms should be implied into the parties’ contract (a lease) (they shouldn’t).
  • To reject an appeal regarding liability for damage to a sewer caused by concrete from nearby piling works (it did).
  • A party had to make any further payments following the contractor’s insolvency under an ACA Standard Form of Contract for Term Partnering 2005 (TPC2005) (it didn’t).
  • To reject an appeal regarding the proper valuation of an omission of works under an engineering contract (it did).

It has been a quiet month on the adjudication front, with just one reported judgment where the Scottish court had to determine whether the adjudicator had gone off on a frolic (he hadn’t). Jonathan Cope looked at the implications. Jonathan also considered conditions precedent in FIDIC contracts. Meanwhile, Matt Molloy highlighted what can happen when a party repeatedly refers disputes to adjudication. Matt also explained the difficulties a tribunal faces when dealing with witnesses and Caroline Carlstedt discussed the cross-examination of witnesses in international arbitration.

On the public procurement front, the court had to consider the scope of the claim set out in the particulars of claim. We also provided you with a three-month policy review and April’s case digest.

Other issues in the news this month have included RICS’ draft BIM implementation guide, BREEAM 2014, CIS payments, the NEC’s FM suite of contracts, recovery of bid-rigging fines and the Rolls Building’s new electronic filing system.

Finally, we published a note on the NEC3 Professional Services Short Contract (PSSC).

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