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October 2013 digest: happy fifth birthday to us

Practical Law Construction:

Before two-thousand-and-eight
You had a lot on your plate
On law to advise
Words blurring your eyes
What was to be your poor fate?

Now in two-thousand-thirteen
We’re five years old and still keen
All those tweaks to the Acts
Myriad cases and facts
We make sure that the best bits are seen

You may be surprised to hear that Practical Law Construction turned five this month and what a five years it has been, so happy birthday to us.

After a relatively quiet summer, the Michaelmas term has started with a bang, with the:

  • Court of Appeal endorsing the Jackson ADR Handbook, especially the section on engaging in ADR, and extending the Halsey principles to include a failure to engage with mediation.
  • Court of Appeal considering the requirement to establish causation in a negligence claim arising from tree root damage.
  • TCC injuncting a party to stop the call of on-demand bonds (twice).
  • TCC considering a contractor’s liability for completion costs following contract termination.
  • TCC allowing a party to change its architectural expert witness.
  • Court of Appeal upholding a decision that a party could not recover under an insurance policy because inaccurate statements about the identity of the builder had been given.

It has been busy on the adjudication front too, with the TCC considering whether:

  • A parties’ agreement satisfied the “in writing ” requirement of section 107(5) of the Construction Act 1996 (it did), which Anna Laney explained. Matt Molloy considered some of the declaratory relief points.
  • It was appropriate to grant a stay of execution of adjudication enforcement (it was), which Anna Laney discussed. The court also held the adjudication was subject to the Scheme for Construction Contracts 1998 because of a Tolent clause, which Jonathan Cope discussed.
  • Documents accompanying the referral notice had to be served at the same time as the referral (they didn’t), which Jonathan Cope looked at. On the facts, the adjudicator did not breach the rules of natural justice either, which Matt Molloy considered.
  • Indemnity costs were payable by the losing party in adjudication enforcement proceedings (on the facts, they weren’t).
  • A responding party had reserved its jurisdictional rights (it hadn’t).

The courts were also active on the public procurement front, with:

  • A refusal to give early disclosure in an injunction application, which Calum Lamont considered as part of his look at disclosure in procurement cases.
  • An injunction granted to prevent a contracting authority entering into a contract with a successful bidder.

Other procurement issues in the news included the results of the PF2 consultation, publication of a joint bidding guide in Wales, a review of Scottish public sector procurement and a monthly case digest. In addition, Simon Taylor and Elizabeth Repper looked at mediation of public procurement disputes.

The Jackson reforms are a little over six months old and are already under review. The courts have continued to adhere to the Jackson principles, as was demonstrated when they considered some of the practicalities of costs budgeting and the impact of costs management after trial.

Parkwood v Laing O’Rourke is still generating column inches, with Simon Liddiard discussing the judgment’s impact on third party rights. Other issues under the microscope included Matt Molloy pondering stays of execution in adjudication enforcement, James Levy looking at misnomer and Richard Power considering disclosure obligations in international arbitration. Disclosure was also in the news with TeCSA and Tecbar publishing a draft e-disclosure protocol. Further afield, CIArb launched a dispute board consultation, Practical Law published a podcast on shared obligations (such as joint and several liability) for litigators, the ACA published its PPC2000 2013 version and we told you we had updated our boilerplate provisions.

And finally…

Who knows what the next five years will hold. There may not be another set of amendments to the Construction Act 1996 to get to grips with, or an Olympic Games on the horizon, but we will be here and are sure to find plenty to report on and discuss with you. If you would like to get in touch, we’d love to hear from you. It isn’t necessary to send fish!

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