“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.”
It isn’t often that we resort to Shakespeare on this blog and, given the wind and rain of early May, something from the Tempest may have been more apt. However, temperatures are rising as the sun is shining and so it seemed apt to start on a sunny note!
Case law during May blossomed. In adjudication, the Chancery Division confirmed (again) that parties should adjudicate not issue winding-up petitions for disputed sums under construction contracts (which Jonathan Cope considered) and the TCC:
- Enforced an adjudicator’s decision but declined to grant a stay of execution pending the outcome of separate CPR 8 proceedings.
- Enforced an adjudicator’s second decision, finding it did not contradict the adjudicator’s first decision.
- Held a defendant waived its right to challenge the decision by inviting the adjudicator to correct it under the slip rule, which Jonathan Cope discussed.
A number of other issues have been before the courts, with the:
- Supreme Court commenting on subrogation in a co-insurance context and the Privy Council considering the scope of a contractors all risks (CAR) insurance policy. (More of the Insurance Act 2015 came into force this month too.)
- Court of Appeal interpreting the terms of a maintenance and repair contract and giving guidance on settlement against joint tortfeasors. It also confirmed there is a limited role for the contra proferentem rule in contract interpretation.
- TCC finding a party’s Precedent R was “completely unrealistic” and was an abuse of the costs budgeting process. It held that main contract terms were incorporated into a sub-contract, which meant the parties had a fettered right to litigate disputes. It also interpreted a JCT sub-contract to establish whether practical completion had occurred before or after a flood.
- High Court in Northern Ireland holding that a compensation event under NEC3 should be assessed on an actual cost basis. It also held that a project company had failed to give notice of a compensation event, which barred it from claiming relief.
Continuing the insurance theme, we published three notes on the JCT’s 2016 insurance provisions. We also published a note on claims under a FIDIC contract and told you when the remainder of the JCT 2016 Editions will be published. On the public procurement front, there was a case digest and a new note on consortia bidding and sub-contracting.
We had an eclectic (and somewhat alphabetic) selection of comment this month:
- ADR. There is an increased emphasis on ADR in commercial actions in Scotland, which Julie Scott-Gilroy discussed.
- Batteries, specifically the possibility of using them to commercially store electricity, were looked at by
- “Catch-all” wording. Jonathan Cope highlighted a case that considered the meaning of “such other relief as the Adjudicator deems proper”.
- Charging orders and some of the issues when obtaining them were discussed by James Frampton.
- Disclosure, specifically the use of technology assisted review (TAR) and predictive coding tools, was looked at by Michael Wheater and Charles Raffin.
- Electronic working. This has been compulsory since the end of April. Melissa Moriarty considered what’s been learnt so far (even though the new PD still hasn’t been issued, just a draft).
- Fraud: the increase in such allegations in adjudication and what acting judicially means were both considered by Matt Molloy.
- Freebies: how far do you go in giving friends free advice was considered by Jennifer Varley.
- Good faith, particularly in light of the judgment in Costain v Tarmac, which James Tonkin and Daniel Cashmore looked at.
- Names. The TCC is changing its name, and Paul Darling OBE QC considered what this might mean for court users in the future.
- Subrogation. Natalie Wardle revisits joint insurance and rights of subrogation following the Supreme Court’s decision in Gard Marine.