Practical Law

Ernest Hemingway:

“For a long time now I have tried simply to write the best I can. Sometimes I have good luck and write better than I can.”

Practical Law Construction turned seven this month. Over the last seven years, just like Ernest, we have done the best we can to keep our subscribers abreast of developments in the world of construction law. After seven years, we hope you feel that you can’t live without us. Certainly, we couldn’t exist without you!

As we are clearly wedded to our subscribers, according to Wikipedia, after seven years the traditional wedding anniversary gift in the UK is woollen (wool or copper in the USA). Apparently the Chicago Public Library suggests a modern gift list of desk sets or pen and pencil sets. That may seem apt for a team that writes for a living!

After the summer recess, the Michaelmas term has exploded into life, with a number of interesting judgments to write about, including (on adjudication) whether:

• Part of the contractor’s works fell within the exception in section 105(2)(c) of the Construction Act 1996 (they did, so the adjudicator’s decision wasn’t enforced or severed).
• “A party [was] ‘scrabbling around’ trying to find reasons not to comply with an adjudicator’s decision” (it was, and all its jurisdictional challenges failed).
• The adjudicator was correctly appointed (by CIArb) and applied the right adjudication rules (Option W2) (he was and he did).

Other issues before the courts have included whether:

• A project monitoring surveyor was negligent and whether the funder was contributorily negligent (they both were), which Jonathan Cope discussed.
• A contract included an exclusive remedies clause and there was no condition precedent in the force majeure clause (it did and there wasn’t). Helena White looked at how the court interpreted the contract.
• To grant an injunction restraining a building contractor from issuing a winding-up petition against its employer (in light of section 111(10) of the Construction Act 1996) (it did). Matt Molloy considered why the contractor did not adjudicate its payment claim and Michael Mendelblat considered if winding-up is the best route to getting paid.
• To grant summary judgment on a third party’s claim under the Civil Liability (Contribution) Act 1978 when there was a limitation of liability clause in the contractor’s collateral warranty (it refused).
• An oral contract to negotiate a land purchase was a construction contract (it wasn’t).
• A professional consultant was entitled to damages for unpaid fees, subject to deductions for losses arising from its negligence (it was).
• The parties could amend their statements of case seven weeks before trial, even though it meant vacating the trial date (they could and it was).

Section 54 of the Modern Slavery Act 2015 came into force on 29 October 2015. It requires commercial organisations with a total turnover above £36 million to prepare an annual slavery and human trafficking statement for each financial year ending on or after 31 March 2016. To assist, we published new materials and updated our JCT schedules of amendments to include an obligation on the contractor to comply with the Act.

Staying with writing (and specifically drafting a contract), other developments of interest include revised Z clauses for the NEC3 contracts and amendments to reflect the Consumer Rights Act 2015 (which also came into force this month).

We’ve always thought writing a blog for us was relatively easy (about 1,000 words on a topical issue). This month has seen topics as varied as:

• The use of the DIFC Court to ratify and enforce awards by Matthew Heywood and Neeva Rice.
• The end of the six month transition period for CDM 2015 by Katharine Tulloch.
• An adjudicator’s discretion to decide a dispute by Matt Molloy.
• The key differences between English and Scots litigation law by Julie Scott-Gilroy and Claire Mills.
• Estoppel by convention by Harry Smith.
• Supervising the engineer under a FIDIC contract by Richard Davies.
• An adjudicator reaching (and writing) his decision by Jonathan Cope.
• Current developments in mediation by Elizabeth Repper.

In other news, the Housing and Planning Bill was finally published, there will be an inquiry into privatising GIB, carbon emissions standards for supply chains were published and the National Infrastructure Commission and the RICS’ new arbitration service were launched.

…and finally, we understand that electronic working went live in all the Rolls Building courts this month.