Douglas Adams, The Restaurant at the End of the Universe:
“…one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them… anyone who is capable of getting themselves made President should on no account be allowed to do the job.”
The first majority Conservative government since 1992 was elected this month. Since then, we’ve heard the Queen’s Speech (which sets out the legislative programme for the 2015-16 Parliamentary session) and know the second budget of the year will be on 8 July 2015. While many of the bills in the Queen’s Speech may have come as no surprise, we covered the construction, property, planning and environmental aspects.
After a quiet few weeks, it seems adjudication enforcement is back (although some may say it never went away). This month, the courts have been asked to consider whether:
- There was procedural irregularity or bias (there wasn’t), which both Jessica Stephens and Matt Molloy discussed.
- The adjudicator had jurisdiction to award restitution as it was a remedy available following a breach of contract (he did, as it was).
- An application for interim payment was made early, which meant the adjudicator’s decision could not stand (it was, so it couldn’t).
Matt Molloy looked at the differences between adjudication in England (under the Construction Act 1996) and in Ireland (under its Construction Contracts Act 2013). Part one focused on procedural and enforcement differences, part two on appointment, fairness and public law issues (like Wednesbury unreasonableness).
Other courts have also been busy. For example, the:
- Court of Appeal allowed an appeal and cross-appeal, finding that the contract did not require the contractor to achieve a service life of 20 years. John Hughes-D’Aeth considered the impact of design defects in offshore wind turbines.
- TCC refused to allow the claimant to amend its particulars of claim eight months before trial because it would require the trial date to be adjourned.
- TCC granted summary judgment, struck out a counterclaim for professional negligence and emphasised the importance of preparing for the PTR.
- TCC held that a party could not take advantage of its own wrong in enforcing a condition precedent under the FIDIC Red Book.
- Commercial Court provided guidance on the law of mitigation following a breach of contract.
- TCC determined preliminary issues on contract interpretation following an application under section 45 of the Arbitration Act 1996.
- TCC held that an employer was estopped from recouping alleged overpayments under an NEC3 Term Service Contract (TSC).
We have also had plenty of comment, with:
- Ben Laurence discussing integrated project insurance.
- Jonathan Cope considering pleading a defects claim and using abatement as a shield, not a sword.
- Geraldine Laing highlighting what happens if a contractor fails to provide bonds and warranties.
- Michael Sergeant explaining a contractor’s entitlement to be paid for variations.
New and updated content this month has included a revised note on the mediation of construction disputes by Elizabeth Repper, a revised note on liquidated damages, improved guidance on JCT collateral warranties and updated professional negligence materials.
Finally, Practical Law Dispute Resolution joined the blogging fraternity this month. The blog launched with a three-part interview with Sir Vivian Ramsey, who looked at issues past, present and future. Other posts that may be of interest to construction practitioners have looked at part 36, compulsory mediation, penalty clauses and liquidated damages, costs management and costs budgeting.