REUTERS | Ilya Naymushin
November 12, 2013

Experts who seek to defend the indefensible

The court’s criticism of the parties’ expert witnesses seems to continue unabated. It is a topic I have looked at many times, not least back in August when I discussed Akenhead J’s judgment in National Museums and Galleries on Merseyside v AEW and PIHL/Galliford Try. In all the criticism leveled at the experts, one particular comment stood out for me; the fact that AEW’s expert architect admitted in cross-examination that he was “seeking to defend the indefensible” for those instructing him.

Criticism of the experts has arisen again, this time in the context of an expert who just didn’t have the appropriate expertise. Continue reading →

REUTERS | Fabrizio Bensch
November 6, 2013

Launched and ready for use: TECSA’s e-disclosure protocol

On 1 November 2013, Edwards-Stuart J formally launched a new e-disclosure protocol to the masses as part of a stimulating and extremely well attended all-day conference, “E-disclosure in practice”. The protocol is the brainchild of Steven Williams and the TeCSA e-disclosure working group.

The event was organised by TeCSA, TECBAR and the SCL to provide practical guidance on the e-disclosure process. As well as a range of extremely knowledgeable speakers, all of whom have worked “at the coal face” of e-disclosure, the involvement of Edwards-Stuart J as the key note speaker and the presence of Stuart-Smith J showed just how seriously the TCC are taking the subject of e-disclosure. Continue reading →

REUTERS | Ahmad Masood
November 5, 2013

Waive goodbye to your jurisdictional challenge

In the early ’80’s, Soft Cell sang Say hello, wave goodbye. It probably isn’t as well known as the dance floor-filler that is Tainted Love, but it is a song that came to mind when I read Akenhead J’s judgment in Brims Construction v A2M Development Ltd. If you are wondering why, it is because the court held that A2M had waived goodbye to any right to raise a jurisdictional challenge.

Continue reading →

REUTERS | Mike Blake
November 5, 2013

Warning about unreasonably refusing to participate in ADR as Halsey principle extended

Almost ten years ago, the Court of Appeal addressed, as a matter of principle, the extent to which it was appropriate for the court to use its powers to encourage civil litigants to settle their disputes. In Halsey v Milton Keynes General, it held that a successful party can be deprived of all or part of its costs if it unreasonably refused to agree to ADR.

Last month, the Court of Appeal modestly extended this rule to include silence in the face of an invitation to participate in ADR. In PGF II SA v OMFS Company 1 Ltd, it held such silence is, as a general rule, of itself unreasonable.

In PGF, the claimant had twice written to the defendant asking it to mediate and, if it refused to do so, to say why. The defendant failed to respond. The Court of Appeal held that the defendant had unreasonably refused to mediate and penalised it with a costs sanction.

Several important points arise out of this decision. Continue reading →

REUTERS | Esam Omran Al-Fetori
October 30, 2013

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. Continue reading →

REUTERS | Tobias Schwarz
October 29, 2013

Should the adjudicator be told about declarations during an adjudication?

Whether an adjudicator should be told about court declarations under CPR Part 8 during an adjudication was the jump out point for me when I read Edwards-Stuart J’s judgment in Glendalough Associated SA v Harris Calnan Construction Co Ltd. However, in contrast to the same judge’s decision in McGee v Gear last year, this time he did want part of the judgment communicated to the adjudicator before the adjudicator made his decision.

Continue reading →

REUTERS | Alexander Demianchuk
October 28, 2013

Adjudication: a bag of tricks, or treats?

In Glendalough Associated SA v Harris Calnan Construction Co Ltd, Edwards-Stuart J considered three issues:

  • The meaning and effect of “an exchange of written submissions” for the purposes of section 107(5) of the Construction Act 1996.
  • The ingredients of construction contracts under section 107(2)(c) of the Construction Act 1996.
  • When a court will “interfere” with the adjudication process.

The circumstances surrounding this adjudication were, to adopt the court’s description, “unusual”. The outcome underlines that jurisdictional challenges need to be made at the outset and that the court will only interfere with the adjudication process in the most clear-cut of cases.  Continue reading →

REUTERS | Mike Blake
October 23, 2013

Third party rights or collateral warranties? The world after Parkwood

The real estate industry can be slow to react to innovation. The slow uptake of third party rights in lieu of collateral warranties is a classic example of this: the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) is 14 years old, yet there are still parts of the industry that do not trust third party rights.

Ironically, the recent judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd suggests that perhaps our scepticism might have been better directed at collateral warranties. If Parkwood is correct, then for the last 17 years it would seem that the industry has fundamentally misunderstood the nature of some of the collateral warranties that it has been writing. Continue reading →

REUTERS | Jason Lee
October 23, 2013

The use of mediation to resolve public procurement disputes

Public procurement is a hybrid of commercial and public law. It comprises a set of statutory rules, based on European Union law principles of non-discrimination and transparency, which are designed to ensure fair competition between companies from different member states. If a public body (a “contracting authority”) infringes the rules, an economic operator who may suffer loss as a result may bring an action to set aside the decision and/or claim damages.  The money at stake is public money and the defendants are either government bodies or other entities entrusted with public functions.

This post considers why parties mediate a procurement dispute and some of the special considerations that apply. Continue reading →

REUTERS | Yuriko Nakao
October 22, 2013

Yuanda followed in the TCC

We might have another 11 months until the Scottish referendum, but I’ll lay my cards on the table. I think partition of the UK would be a real shame so, if I had a vote (which I don’t), it would be “no”. While there are a variety of economic and political considerations, ultimately, it’s for purely selfish reasons. I love Scotland and its people, and am proud that we are part of the same united country. I would be sad to lose that.

I’m sure that civil servants and academics are currently considering the implications of independence on the Scottish legal system, particularly at Supreme Court level. However, my guess is that, at first instance and initial appeal levels, there are unlikely to be any differences. Scotland has its own legal system and, while judgments from England and Wales are persuasive, they are not binding.

In the field of construction law, we’ve seen Scottish and English judges taking different approaches to issues, for example concurrent delay and apportionment of global claims. Another area concerns the thorny subject of party costs in adjudications where the contract was entered into before the autumn 2011 amendments to the Construction Act 1996. That was highlighted again when Coulson J’s judgment in Pioneer Cladding v John Graham Construction was published earlier this month. Continue reading →