REUTERS | Sean Yong
August 16, 2013

Are adjudication costs recoverable in subsequent litigation?

Adjudication doesn’t come cheap. In recent years, the cost of adjudicating has become one of the most common criticisms of the whole process. As we are often reminded, it was always meant to be about cashflow, to introduce a process that was interim-binding and that would allow the parties to keep working together while, at the same time, ensuring the contractor (or sub-contractor) got paid and the project got built.

Dyson J recognised this back in 1999 in Macob v Morrison when, in the first adjudication enforcement case, he said it was a “speedy mechanism for settling disputes in construction contracts on a provisional interim basis”.

Over the years, the process has moved forward, with parties more tactically astute and their arguments and submissions more sophisticated. However, cashflow remains the central theme. As Ramsey J commented in True Fix v Apollo, cashflow is the “essence of adjudication” and “it is imperative that cashflow is maintained as a priority in the construction industry”. Continue reading →

REUTERS | Eduardo Munoz
August 13, 2013

Ask the team: is it safe to use correspondence as a contract document?

As the employer and contractor on a construction and engineering project get ever closer to concluding negotiations and signing their building contract, they are often settling technical details of design or specification. Typically, they do so by e-mails, or perhaps minuted meetings. Should those emails or minutes form part of the final contract? Continue reading →

REUTERS | Sukree Sukplang
August 13, 2013

Is arbitration a viable means of avoiding mandatory costs budgets in the TCC?

A few weeks ago I spent an interesting evening at the Rolls Building taking part in the current consultation on mandatory costs budgeting. The consultation is being chaired by Sir Peter Coulson and, amongst other things, it is considering the desirability of retaining the Admiralty and Commercial Courts’ blanket exception to the mandatory costs budgeting and the current value-based exception for the TCC, the Chancery Division and the Mercantile Courts (claims in excess of £2m are excluded).

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REUTERS | Petar Kujundzic
August 6, 2013

The unpredictable nature of adjudication and enforcement proceedings

We are all familiar with the principle in English law of precedent and its binding or persuasive nature (depending on where the precedent comes from). We are equally familiar with the court’s ability to distinguish one judgment from another, to not follow previous authority or precedent and to rely on the individual facts to do so. It is well-established that each case will turn on its own facts and it is precisely because of this principle that it is often difficult to predict which party will be the more successful one in any claim that reaches the courts.

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REUTERS | Vasily Fedosenko
July 31, 2013

July 2013 digest: another summer of sport and the Royal family

JM Barrie, Peter Pan:

“When the first baby laughed for the first time, the laugh broke into a thousand pieces and they all went skipping about, and that was the beginning of fairies.”

This time last year we were all talking about the Queen’s jubilee celebrations and the start of the London 2012 Olympic Games and Paralympic Games. A year on and there is another summer of great sport underway, with the Anniversary Games, success for Andy Murray at Wimbledon and Chris Froome in the Tour de France and, hopefully, the England cricket team in the Ashes. We also have the Royal family in the news again, this time with the arrival of baby George Alexander Louis.

There have been some interesting developments in the legal world too. Continue reading →

REUTERS | Kim Hong-Ji
July 30, 2013

Walter Lilly seems to be flavour of the month in submissions

I don’t know if Mackay is to Scottish names what Smith is to English names, Jones is to Welsh names and Molloy is to Irish names, but it seems to have featured fairly regularly in the posts on this blog over the last year or so.

It was in July last year that we had Akenhead J’s seminal judgment in Walter Lilly v Mackay, which I discussed at the time. More recently, Jonathan considered Lord Malcolm’s judgment in the whisky distillery case, White and Mackay v Blyth & Blyth (same name, significantly different facts). It’s not just us either, as Alastair Walls has also considered both judgments and, more recently, James Ladner referred to prolongation claims. Continue reading →

REUTERS | Ricardo Moraes
July 30, 2013

Predictive coding: a helpful new technology or merely the latest buzzword?

There has been a lot of hype in the past year about predictive coding. Lawyers have prided themselves on being fantastically “in the moment” when proposing this advanced technology to clients, in the context of large disclosure exercises, with the promise that it will save time and money. Indeed, using this latest technology has become an effective way for law firms to set themselves apart from their competitors. However, clearly clients should not use it simply because it is the latest trend. It is critical that we, as legal advisers, and our clients understand how it works and when its use is appropriate, so that we can make an informed decision.

Continue reading →