John Clare, Remembrances:
“Summers pleasures they are gone like to visions every one, and the cloudy days of autumn and of winter cometh on.”
As November ends, so does autumn. It may mean the start of winter, but it also means it is time for the government’s Autumn Statement. This year, George Osborne said he was going to “rebuild Britain”, which may be good news for the construction industry.
In adjudication, the TCC considered whether:
- A party could carve out of a “notified sum” a lesser sum and seek summary judgment on it (it couldn’t). Catherine Piercy looked at this, and other payment issues.
- The parties had settled their dispute, which meant there was nothing to refer to adjudication (they had, so there wasn’t).
- An adjudicator’s decision was correct (it wasn’t, so declaratory relief was granted).
Elsewhere, Jonathan Cope considered the impact that paying an adjudicator’s fees has on jurisdictional challenges and Matt Molloy discussed whether an adjudicator breached natural justice by refusing a site visit.
The courts were busy during November, with the:
- Supreme Court restating the penalty rule, which Marcus Birch and Matthew Finn both looked at. We revised all our maintained materials, including our note on liquidated damages.
- Court of Appeal considering concurrent liability in contract and tort.
- TCC disregarding an expert’s evidence in full.
- TCC considering the matters relevant to transfer to the County Court.
- Chancery Division ordering costs budgets in a claim over £10 million.
Comment this month included:
- Richard Dupay on the TCC’s shorter and flexible trial pilots.
- Jonathan Cope on RICS’ new construction and engineering arbitration service.
- Michael Sergeant on deemed variations.
- Liz Mungara on PPPs in the Middle East.
- Matt Molloy on “construction operations” and the exceptions under section 105 of the Construction Act 1996.
- Richard Benn on the Consumer Rights Act 2015’s impact on construction contracts.
- Paul Walsh on painshare and gainshare provisions in alliancing contracts.
On the public procurement front, we saw new procurement thresholds, a policy review, October’s case digest, new standard forms for procurements, some training slides for those working in utilities and a policy note on procuring steel. Andrew Millross considered publishing procurement documents.
In other news, the colour of court seals has changed, the NBS published its construction contracts survey, Ofgem gave guidance on EPC contracts, the government announced that Infrastructure UK and the Major Projects Authority will merge, a new energy policy, plans to privatise the GIB and new sentencing guidelines for manslaugher and health and safety breaches were published.
And finally, the Chancery Division has confirmed that (in case anyone was in any doubt), a dog cannot be a claimant in court proceedings. This meant the claims by Goldie and Diamond (aged 18 months and two years respectively) were struck out:
“I also cannot see how a dog could give instructions for a claim to be brought on its behalf or be liable for any orders made against it. There are a whole host of other reasons why proceedings by dogs must be void…”
