REUTERS | Eduardo Munoz
October 15, 2013

An adjudicator dealing with all defences, or not

Establishing whether an adjudicator had done his job properly is a difficult area and one that has troubled the courts on many occasions over the years. We have all read judgments following enforcement proceedings where one party alleged the adjudicator breached the rules of natural justice because he failed to consider a particular issue or defence. It is always a question of fact how the case turns out and whether the court enforces the adjudicator’s decision or not.

The issue came up again recently in Stuart-Smith J’s judgment in KNN Colburn v GD City Holdings and also in Akenhead J’s judgment in CG Group v Breyer Group. Jonathan has written about both judgments (see Read all about it: adjudicator didn’t commit a serious breach of the rules of natural justice and Take note of when your adjudication timetable starts). However, he did not specifically address the argument that Stuart-Smith J’s judgment may be in conflict with Akenhead J’s judgment. Continue reading →

REUTERS | Amit Dave
October 15, 2013

Adjudication: a Pioneering decision…

The Wimbledon v Vago principles to be applied on an application for a stay of execution of an adjudicator’s decision are familiar to all. Indeed, most practitioners would consider there was nothing left to be worked out by the courts.

However, in his decision in Pioneer Cladding Ltd v Graham Construction Ltd, Coulson J had to consider a “novel” point. Continue reading →

REUTERS | Lisi Niesner
October 10, 2013

Disclosure in public procurement challenges

An aggrieved tenderer will always want to find out as much as possible about what happened during a procurement process in order to fully understand why its bid failed. For most procurements (other than those either under threshold or for Part B services), the Public Contracts Regulations 2006 (SI 2006/5) (and as amended) (Regulations) contain their own mechanism (under regulation 32) for the communication of relevant comparative information to the tenderer about its bid and that of the winner, to enable it to gain that understanding.

However, it is also the case that the level of information that the contracting authority is willing to provide at that stage can be extremely varied. Sometimes it will provide the barest possible information, leading to the inevitable challenge that regulation 32 has not been complied with, and the standstill period has therefore not been engaged. On other occasions, significant information will be supplied, which may in turn open up avenues of enquiry for the losing tenderer to ask extra questions, or to request further information or documents. Continue reading →

REUTERS | Ronen Zvulun
October 8, 2013

Document production in arbitration – is it all worth it?

Berwin Leighton Paisner’s (BLP) third annual arbitration survey indicates that most arbitration users feel that document production adds significant delay and cost to the process, yet rarely contributes much to the outcome of the arbitration. It also indicates that tribunals and parties are struggling to get to grips with e-disclosure, and that tribunals are often not up to speed on the issues when hearing document production applications.

In light of this, should we simply do away with document disclosure and accept that it may, in certain circumstances, be possible and indeed appropriate to get to the right answer without this extensive trawl through the documents? After all, the adjudication of construction disputes typically operates on this basis and more often than not results in an outcome that the parties choose to live with as the final determination. Continue reading →

REUTERS | Ahmad Masood
October 7, 2013

What’s in a name in a contract?

I have not seen cases about inserting the wrong name in a contract for ages. They must be like London buses. None come along for ages and then two come along in quick succession. That is exactly what has recently happened. Over the summer we’ve had Henderson J’s decision in Derek Hodd Ltd v Climate Change Capital Ltd and then Ramsey J’s decision in Liberty Mercian Ltd v Cuddy Civil Engineering Ltd.

Both cases concerned the not uncommon mistake of using the wrong name from a group of companies when drafting the contract. It may appear obvious but it is clearly essential to correctly identify the parties to a contract, otherwise there will be no valid contract to enforce. These cases both raise questions about “misnomer” where there is the wrong or inaccurate use of a name or a term (misnomer allows the court to substitute the correct name for an incorrect one, but the test is not an easy one). Continue reading →

REUTERS | John Kolesidis
October 1, 2013

Should I stay or should I pay now? Adjudication and insolvency

I may have tweaked a line from The Clash’s, “Should I stay or should I go now“, but applying for a stay of execution in adjudication enforcement proceedings seems to be on the increase, at least so far as reported judgments are concerned. I can think of at least four cases since May, and my take is that it is a reflection of the difficult economic circumstances that many construction (and other) companies find themselves in, combined with the impact of the payment provisions brought in by the amendments to the Construction Act 1996.

Continue reading →

REUTERS | Mike Blake
September 30, 2013

September 2013 digest: it was all about collateral warranties

Jennifer Hanson, Collateral Damage:

“The sweet September rain chased away the sun
Darkened up my skies as sorrow sweetly hung.”

As autumn approaches, so does the start of the Michaelmas court term. While the majority of court users may have been enjoying the summer recess (and the end of  a wonderful summer), a small team went before Akenhead J on a CPR Part 8 application to ask whether a collateral warranty was a construction contract. If it was, they could adjudicate their dispute. To the surprise of many, the court said yes. James Ladner told you about the judgment, John Hughes D’Aeth explained why he thinks the judgment is wrong and Matt Molloy discussed its implications for adjudicators and adjudication. We anticipate that many more column inches will be devoted to this judgment over the coming months. Continue reading →

REUTERS | Mike Blake
September 27, 2013

Tree root damage: making everyone pay?

It is commonly thought that homeowners are not liable for damage caused by the roots of trees on their property, because they lack the necessary degree of foresight. However this is no longer correct. In a decision of some significance, Ramsey J in Khan and Khan v Harrow Council and Sheila Kane has held that homeowners can be liable to neighbours for damage caused by tree root encroachment, even if they were personally not aware of the risk of damage.

Continue reading →

REUTERS | Lisi Niesner
September 25, 2013

A view from the bench: observations on the TeCSA marshalling scheme

I recently had the fortune of sitting on the TeCSA marshalling scheme, which allows junior lawyers specialising in technology, engineering or construction the opportunity to shadow TCC judges for one week. This gave me the unique opportunity to witness hearings from an entirely neutral perspective, without the normal influence of one’s own involvement in either side of the case.

We all know the usual list of do’s and don’ts for a successful hearing but, from an elevated (the marshal sits next to the judge on the bench), all seeing, all hearing perspective, it becomes even more compelling as to why strategic and rigorous case and hearing management is important. Continue reading →