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November 2017 digest: adjudication, arbitration and payment

John Steinbeck, The Grapes of Wrath:

“A large drop of sun lingered on the horizon and then dripped over and was gone, and the sky was brilliant over the spot where it had gone, and a torn cloud, like a bloody rag, hung over the spot of its going. And dusk crept over the sky from the eastern horizon, and darkness crept over the land from the east.”

Sadly, Sir Michael Latham, whose report, Constructing the Team, did so much to change the UK’s construction industry, died this month. His legacy is remarkable, whatever you may think of adjudication or the continuing cash flow issues that persist within the industry. Certainly, both issues were at the fore at the Adjudication Society annual conference, which Richard Booth, Joanne Button and Daniel Johnson told us about. On the same topic, Jonathan Cope told us about the review of the 2011 amendments to the Construction Act 1996 and Julie Scott-Gilroy considered whether the payment terms are working in Scotland.

Those issues were also ever-present in the case law this month, with O’Farrell J’s judgment in Actavo v Doosan and Jackson LJ’s judgment in Adam Architecture v Halsbury Homes (which David Sears QC provided insight on). Lord Doherty also got in on the adjudication act, Matt Molloy told us about Lord Bannatyne’s judgment in Edinburgh Schools v Galliford Try and Jonathan Cope looked at Merit v Lonsdale. We also told you that our suite of adjudication standard documents, looked after by Jennifer Varley, had been reviewed and updated. They will help you start an adjudication (see the notice or referral) or, if you want to enforce an adjudicator’s decision, we’ve got a claim form, particulars of claim and witness statement in support.

There is often talk about the growing interest in arbitration as an alternative to adjudication. There was plenty of arbitration news this month (although not related to construction disputes), with the courts considering service of the arbitration notice on a junior employee and on a fronting company, removal of the arbitrator for lack of qualification, a working group on cybersecurity and a survey on party-nominated arbitrators.

Elsewhere, the courts were tackling issues such as an employer being required to give the contractor an opportunity to remedy a breach before terminating, damages for fraudulent misrepresention, the extent of privilege where documents “evidenced” the substance of the advice given, an application for early specific disclosure, and costs when a Part 36 offer was accepted late. We also saw proposals for a disclosure pilot scheme in the B&PCs and the CPR’s 92nd and 93rd Practice Direction (PD) making documents (including the B&PCs PD) were published. Better late than never, as the saying goes.

On the comment front, Fraser J’s judgment in Riva Properties v Foster + Partners came under scrutiny from Mark Briggs, Catherine Piercy and Matt Molloy, James Frampton discussed the judgment in Interserve v Hitachi and Philip Hancock considered causation in fire cases following Stoke-on-Trent College v Pelican Rouge Coffee.

It wouldn’t be right to talk about November without mentioning the budget. As ever, there was little direct news for the construction industry, although someone has to build all the houses and infrastructure that was referred to. Other infrastructure news included the government’s new industrial strategy and a report on the Cambridge/Milton Keynes/Oxford corridor. There was also a report on the future of the CITB and ECITB and a Construction Industry Brexit Manifesto and (unrelated to infrastructure), we found out that the draft Business Contract Terms (Assignment of Receivables) Regulations have been withdrawn. We also published the second post in our procurement series, by James Marshall, Nicholas Myall and Ben Davies.

And finally, we completed our suite of NEC4 materials this month, with notes on the Professional Service Contract and the Professional Service Short Contract, both by Iain Suttie.

Practical Law Monthly digest

One thought on “November 2017 digest: adjudication, arbitration and payment

  1. And as we published this digest a day early to coincide with our weekly subscriber email, we missed a couple of cases:

    Tiuta International Ltd v De Villiers Surveyors, where the Supreme Court adopted a back to basics approach to the assessment of damages.

    Freeborn v Marcal (t/a Dan Marcal Architects), where Coulson J dealt with a costs budget, allegedly served late, and issued a strongly worded warning to parties not to abuse the court’s tougher approach to non-compliance.

    Jackson LJ also gave a speech in Hong Kong on good faith in construction contracts.

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