Practical Law

I can’t believe it’s that time of year again. It doesn’t seem like five minutes since I was writing a post looking forward to 2021.

Where did 2021 go or, for that matter, 2020 and countless other years before then? As I noted back in 2020, this is the third decade in which I’ve blogged for Practical Law Construction. It is also my 11th looking forward piece (Jonathan helped out in 2019 and 2017).

As regular readers may note, there has been a consistency in what I’ve wished for over the years. However, some may feel reading this is a bit like watching a scene from Groundhog Day… but I have let go of some things (adjudication enforcement in Ireland for example) and I’ve also got a few new items.  Continue reading →

I’m acutely aware that this blog is being published when many of you will have already broken-up for the Christmas holidays, and quite possibly the last thing you want to be doing is reading work-related content when you could be sipping Bailey’s and watching your favourite Christmas movie (I’ll throw Die Hard, Home Alone and Love Actually into the mix, but not necessarily in that order). I will therefore endeavour to keep this short.

If you cast you mind back to October you might recall that I wrote about CC Construction Ltd v Mincione, which concerned (among other things), the conclusiveness of a Final Statement under a JCT Design and Build Contract, 2011 Edition. Just like buses, a similar case has come along, namely D McLaughlin & Sons Ltd v East Ayrshire Council, which considers the conclusiveness of a Final Certificate under a JCT Standard Building Contract with Quantities, 2011 Edition (it’s the Scottish version but the key clauses are the same).

My thanks to Len Bunton for bringing this judgment to my attention. Continue reading →

Many years ago I wrote a blog on how an adjudicator should avoid using idiosyncratic language in their decision. I had in mind a particular judgment (Vision Homes Ltd v Lancsville Construction Ltd), where one party was arguing the decision was void and of no effect because it was vague and ambiguous. It was the judge (Christopher Clarke J) who described the adjudicator’s language as “idiosyncratic”, but also said that it would not have prevented him from upholding the adjudicator’s decision, but for a technical issue to do with his appointment (he was incorrectly appointed and lacked jurisdiction in any event). The adjudicator’s choice of language was also before the TCC later that year, this time in ROK Building Ltd v Celtic Composting Systems Ltd. There the issue centred on whether the adjudicator had directed a payment or simply declared one was due.

However, after that, I don’t recall the matter really troubling the courts. Fast forward 12 years, and once again an adjudicator’s decision-writing is in the spotlight. When you see what follows, you’ll see why I could not resist blogging about it. After all, how often do you see references to baseball, Squiddly Diddly and SpongeBob Square Pants in the same decision? I’m pretty sure I have never referred to any of those in one of my decisions!

We are heading down under to the Supreme Court of the Australian Capital Territory (ACT) and I must thank Julian Bailey for the heads up on this one 😉

Continue reading →

We often hear cases referred to as having turned on their facts and, if there was ever an example of this it would be the judgment handed down in October 2021 in G&D Brickwork Contractors Ltd v Marbank Construction Ltd. The parties’ names will ring a bell with some of you because, earlier in the year, O’Farrell J refused to grant an injunction restraining G&D from bringing adjudication proceedings, and last month’s judgment from Joanna Smith J deals with the enforcement of the adjudicator’s decision.

I’m partial to the occasional flutter, and I would bet my hat that the facts of this case are so unique that it’s unlikely to be referred to a great deal in the future, let alone be one of the great adjudication reference cases such as Carillion v Davenport. However, don’t let that put you off reading what remains of this blog, as the case nevertheless sets out some of the relevant law where parties litigate prior to adjudicating (I did say the facts were unique…). Continue reading →

Back in February 2021, I wrote a blog entitled, You must adjudicate before you can arbitrate, where I discussed Lady Wolffe’s judgment in Fraserburgh Harbour Commissioners v McLaughlin & Harvey Ltd. At the time, I said that if parties have a tiered dispute resolution clause in their contract, one thing they shouldn’t do is jump in at the deep end, missing out a step or two on the way, because we know the judges don’t like this (as was proved by Lady Wolffe’s dismissal of the court proceedings in that case).

It seems events have moved on a bit, as not only has there been an appeal in the Fraserburgh dispute (which I’ll come to), but we have another example of parties not complying with the NEC3 dispute resolution clause before the Scottish courts. I have Len Bunton to thank for flagging this week’s case to me, Greater Glasgow Health Board v Multiplex Construction Europe Ltd and others. I had been wondering what to write about … Continue reading →