REUTERS | Brian Snyder
July 23, 2013

Read all about it: adjudicator commits serious breach of natural justice rules

So, after many months of waiting we’ve finally got the news we had been waiting for: it’s a boy or, as one tabloid newspaper put it, “The Regal has landed”. The media has whipped the public into a frenzy and created Royal baby hysteria.

Similar hysteria sometimes results in the construction law world when significant case law is published. Some of the hysteria is warranted due to the significance of the case, for example Walter Lilly v Mackay, and some of isn’t, for example PC Harrington v Systech International. After the latter case was published, some commentators created a false hysteria claiming that “…adjudicators are no longer entitled to their fees if they issue unenforceable decisions…”. However, on reading the case that was clearly wrong and the impact of the case was much more limited, as I said in my blog at the time, and now confirmed by Ramsey J in Wilmott Dixon v Newlon (see paragraph 79). Continue reading →

REUTERS | Neil Hall
July 16, 2013

Parent company guarantee stops stay of adjudication – now that’s magic!

It was Paul Daniels who made the phrase, “You’ll like this… not a lot, but you’ll like it” famous. Perhaps that would have been apt last week when the IMF revised its 2013 growth forecast for the UK from 0.7% to 0.9%. Not great, but it’s a start.

However, there is no doubt that it will be a long road to recovery and we will still see the effects of the recession for some years to come. I’m not an insolvency expert, but I realised the other day that insolvency is a factor in much of my current workload. For example, I’m acting as adjudicator where one party is in financial difficulties, acting as expert in matters where developers have gone pop, and so on. MCMS is even acting as PQS where the previous PQS succumbed to its heavy financial burdens.

Insolvency is never far from the law reports either. In fact, Ramsey J had to deal with some interesting insolvency points in the adjudication enforcement case, FG Skerritt v Caledonian Building Systems. Continue reading →

REUTERS | John Kolesidis
July 9, 2013

BIM roundtable: a view from industry

I was recently involved in hosting a roundtable event attended by representatives from across the construction industry. The event focused on the impact Building Information Modelling (BIM) has had on the UK construction industry to date. We discussed the processes, technology and collaborative behaviour required to successfully implement BIM more widely, and the challenges faced in meeting the government’s mandate for all public sector centrally procured construction projects to be delivered using BIM by 2016.

Some interesting themes emerged: Continue reading →

REUTERS | Robert Pratta
July 9, 2013

Stays of execution, approbation and reprobation, and the binding nature of an adjudicator’s decision

It sometimes feels like issues in case law are a bit like buses. You don’t see one for ages and then several come along all together. I got that feeling recently when I read the judgments in Westshield v Buckingham and FG Skerritt v Caledonian Building Systems. For very different reasons, in both cases the court enforced the adjudicator’s decision and rejected the stay of execution sought by the paying party under that decision.

Aside from the stay of execution point (which failed, Buckingham was ordered to be pay the amount found to be due by the first adjudicator), I thought the judgment in Westshield v Buckingham threw up a number of other interesting issues. Continue reading →

REUTERS |
July 3, 2013

Excluding or limiting liability in commercial contracts: a question of faith?

I was recently negotiating a procurement contract that brought to mind recent cases concerning good faith obligations. It occurred to me that if there is a move towards including express good faith obligations in construction contracts, should we not also consider addressing the consequences of acting in bad faith?

Continue reading →

REUTERS | Sukree Sukplang
July 2, 2013

Food for thought when acting as an expert

It never ceases to amaze me how many reported judgments there are where the expert evidence of one of the parties is criticised by the judge. My last post referred to the views of Peter Smith J in Mengiste, and his conclusion that:

“In this case, there was no doubt that [the claimant’s expert] was one of the worst expert witnesses ever to give evidence before me.”

While that case was proceeding in the Chancery division, it seems that the TCC judges have also been looking at the quality of expert witnesses again. This time, it was Akenhead J in Igloo Regeneration v Powell Williams Partnership. Continue reading →

REUTERS | Navesh Chitrakar
June 30, 2013

June 2013 digest: spending review and infrastructure investment

Robert Louis Stevenson, A Christmas Sermon:

“To be honest, to be kind – to earn a little and to spend a little less…”

These words may have been written at the end of the nineteenth century but still ring true today, especially in light of the Chancellor’s latest spending review. While he may argue he has “…taken our economy back from the brink of bankruptcy…”, it may not feel like that for the many affected by the latest round of cuts. However, one area to benefit was infrastructure, with the focus on capital investment in transport infrastructure. Another was energy. Earlier in the month, the Treasury had reported on infrastructure costs and we saw further guidance on development consent for infrastructure projects. It seems infrastructure is flavour of the month, for a month at least. Continue reading →