I thought two interesting points were made right at the end of the judgment in JG Walker v Priory Homes. Firstly about whether it was appropriate to order indemnity costs of the enforcement application and, secondly, the solicitor’s undertaking to pay the adjudicator’s fees.
In April this year I looked at the “new test” (set out in Cavendish Square Holdings BV and another v El Makdessi) for determining whether or not a contractual provision is a penalty. Last week, the Court of Appeal overturned the decision at first instance, and struck out the relevant clauses as penalties. In doing so, the court went some way towards clarifying the law on penalties. Although the Cavendish case is not a construction case this decision is relevant to everyone negotiating liquidated damages clauses in construction contracts.
The Court of Appeal handed down its judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc on 29 November 2013. The judgment determines by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment.
Christmas is approaching and for many of us that means it’s the time when board games are dusted off and some serious competition begins. I confess that I’m more a Trivial Pursuits than Taboo man, mainly because I’m normally hopeless at guessing what other people are trying to describe, and when it’s my turn I always end up saying one of the outlawed words. That said, I don’t mind a bit of Monopoly, provided I don’t end up with Old Kent Road (no disrespect to those of you south of the river). You can buy train stations, a water works, park for free and even go to jail – and then get out again using your “Get out of jail free” card.
Having read Akenhead J’s judgment in Westshield v Whitehouse, responding parties might now have their own “Get out of jail free” card when trying to resist enforcement of an adjudicator’s decision when the referring party is in a CVA. Continue reading
John Clare, Autumn:
“The summer-flower has run to seed, and yellow is the woodland bough;
And every leaf of bush and weed is tipt with autumn’s pencil now.”
Weather-wise, November has seemed milder and calmer than normal. We may have had a bit of wet and windy weather at the start of the month, with some cold days and a scattering of snow to higher ground more recently, but winter certainly hasn’t got us in her grip yet. If there is a storm coming, it hasn’t arrived.
However, a storm is certainly brewing in the cauldron of civil litigation. Continue reading
What steps can an adjudicator take to safeguard a decision against a challenge for breach of the rules of natural justice? When will a court refuse to enforce an award on natural justice grounds? And should adjudicators even be under a duty to comply with the rules of natural justice?
These are all topics that were debated at the Adjudication Society’s annual conference last week. Continue reading
The TCC’s decision in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd surprised many construction lawyers in concluding that collateral warranties can be construction contracts for the purposes of the Construction Act 1996. The court held that Parkwood Leisure (the beneficiary of a collateral warranty from Laing O’Rourke) could commence an adjudication against Laing O’Rourke in respect of alleged defects in their works.
The decision has been the subject of much comment and criticism from many quarters, one leading lawyer labelling it as “simply wrong”.
But what about third party rights granted to beneficiaries pursuant to the Contracts (Rights of Third Parties) Act 1999? Can they bring adjudication proceedings in the event of a dispute in respect of the rights granted to them? Continue reading
I will hold my hands up and admit that I was slightly sceptical when I saw that the Chartered Institute of Arbitrators (CIArb) was intent on publishing its own dispute board rules. Why do we need another set of rules?
Also, the CIArb’s stated aim of providing rules that cater not only for construction and engineering projects, but also for other commercial and IT projects, seemed slightly unnecessary given that there appears to be little evidence of an appetite to have dispute boards on other types of projects.
However, having read the CIArb’s consultation paper, I’m now fully converted. Continue reading
If you like puzzles, I’ve got some for you: they’re called provisional sums. Most people in the construction and engineering sectors are aware of provisional sums since they appear in many contracts and price build-ups. However, the impression I have is that “provisional sums” mean quite different things to different people. Perhaps a bigger puzzle is why we continue to use them as often as we do.
It was Johnny Nash who sang about seeing clearly back in the early 1970’s. In Roe Brickwork Ltd v Wates Construction Ltd, that wasn’t something Wates thought could be said about the adjudicator’s decision in its dispute with a sub-contractor. Before Edwards-Stuart J, Wates argued that the adjudicator’s decision should not be enforced because it lacked certainty.