REUTERS | Navesh Chitrakar
June 26, 2013

What constitutes “surveying work” in the Construction Act 1996?

Did you realise that there are a multitude of different types of surveyors? Not just the usual suspects such as land surveyors (those standing by the side of the road in high-vis jackets with theodolites) and quantity surveyors (the “brick counters”), but also arts and antiques surveyors, machinery and business assets surveyors, and so on. Some surveyors even go on to specialise within their particular area. This may not be the most exciting start to a blog but bear with me.

Anyway, the different types of surveyors got me thinking about which roles (in addition to quantity surveyors) could be caught under the heading “surveying work” in section 104(2) of the Construction Act 1996 or, for that matter, any other part of section 104. Establishing whether a role comes within the Act can be important to surveyors wanting to exercise their rights under the Act. For example, their rights in relation to payment or suspension, or to employers wanting to pursue professional negligence claims against surveyors via adjudication. Continue reading →

REUTERS | Stephen Hird
June 26, 2013

Advantages of mediation in neighbour disputes

Last time, I looked at recent developments in mediation, including in light of the new Civil Procedure Rules. This time, I’m looking at the mediation of neighbour disputes.

Neighbour disputes often have two common features: hostility and (if the dispute goes as far as trial) the potential for huge legal costs to be run up. However, in my experience there is another way: mediation.

If I was asked how to persuade one neighbour to suggest mediation to the other, I’d say the answer lies in explaining the potential financial and non-financial benefits of taking any neighbour dispute to mediation. Continue reading →

REUTERS | Eduardo Munoz
June 20, 2013

Making head office overhead and profit claims

This post looks at the practical steps in making head office overhead and profit claims, referring to Akenhead J’s blockbuster decision in Walter Lilly v Mackay. Most will know that the court rejected the Scottish (apportionment) approach to concurrent delay and, no doubt, almost all will know of Mr Mackay’s uncompromising approach to his contractor and professional team. However, this article is about neither of those aspects…

…in addition, the case gives useful guidance on what is needed to prove head office overhead and profit claims, which (in short) seems to amount to a lever arch folder, a weekly meeting and a willingness to file. The court also appears to have relaxed the test of “ascertainment” in loss and expense claims.

Continue reading →

REUTERS | Bob Strong
June 19, 2013

Retention of title, vesting clauses and contractor insolvency

There was a good turnout for my talk to the Society of Construction Law on 4 June on retention of title and vesting clauses, despite the counter attraction of one of the first sunny days of summer.

As I said in the talk, this subject is notoriously a legal minefield where minute differences in clause wording are pored over in great detail in the case law and textbooks. However, the subject often arises rather more starkly in the context of insolvency, usually of the main contractor. Indeed, my first experience of this type of clause was against the background of sub-contractors clamouring for their goods back or other recompense, and pointing to the small print of their supply documents. Continue reading →

REUTERS | Russell Boyce
June 18, 2013

A thought shower on managing quantum experts in and out of the hot-tub

Parties too often under-estimate the value of having their case on quantum in order in the lead up to a hearing. In the context of complex high value construction disputes much has been written about the role of experts and ensuring that their evidence is properly presented to the court. The court’s gaze is increasingly turning to liability experts, particularly in the context of delay analysis.

Does this mean that the need to get the figures right and the claim substantiated is just too obvious that we don’t need reminding? After all in the vast majority of the cases we are involved with, the parties are fighting over how much money is owed to whom or the “real” cost of remedying defective work, and they can’t do that without properly presenting their case on quantum, can they? Continue reading →

REUTERS | Ina Fassbender
June 18, 2013

Contrasting a recusal application with challenges to an adjudicator’s jurisdiction

Earlier this year, I raised the possibility of adjudicator-bias in the context of adjudicator’s being paid (or not) following Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International Ltd. What I wondered was whether it was arguable (or at least would be argued by some) that being paid at the end of the adjudication process would influence an adjudicator in favour of a particular party when he was making his decision.

While I’m unaware of this proposition being tested by the courts yet, it is possible that we will see the argument in enforcement proceedings in the not-too-distant future. Meanwhile, until then, another case concerning allegations of bias caught my eye recently. This time, it was a judge being asked to recuse himself for bias. Continue reading →

REUTERS | Carlos Barria
June 11, 2013

Delay: you cannot be serious!

Delays frequently occur in construction projects. Therefore, many construction contracts make delay, or rather a failure to proceed regularly and diligently, a default event giving rise to the right to terminate. However, what happens when there is no express right and the project falls into serious delay? Does the injured party have a right at common law to treat the delay as a repudiatory breach of contract and terminate?

The Court of Appeal considered this question in Telford Homes (Creekside) Ltd v Ampurius Nu Homes Holdings Ltd. Continue reading →

REUTERS | Jumana ElHeloueh
June 11, 2013

Party costs in adjudication

I’ve blogged before about the advantages that adjudication and arbitration can sometimes offer over the court system. For example, last year I considered this topic after West Country Renovations v Mr and Mrs McDowell, where Akenhead J decided that claims for less than £250,000 should be commenced in county courts or other High Court centres outside London that have designated TCC judges.

I’ve recently completed an adjudication where the parties decided to use it as a means of finally deciding their dispute. Continue reading →

REUTERS | Sukree Sukplang
June 11, 2013

Collaboration and alliancing: changing times

The times they are a-changin’…

It was almost 20 years ago that Sir Michael Latham called on the construction industry to change its ways and embrace collaborative working (Constructing the Team, 1994). We know these things take time but are we now finally facing the dawning of the age of Latham?

It is clear that new contracts are being used and the flood of recent cases on good faith and cooperation obligations reflect that change, with TSG v South Anglia being the latest example.

The increasing use of alliancing will also mean the courts have to look at new types of obligations and contractual arrangements. When the courts do that, they should recognise the background to this change. Maybe not quite what Bob Dylan was thinking of in 1964 but perhaps just as radical (at least for us construction people). Continue reading →

REUTERS | Jason Lee
June 5, 2013

Using all reasonable endeavours to commit commercial suicide

The extent to which a party may be obliged to sacrifice its own commercial interests in complying with an “endeavours” obligation in a commercial contract is an issue to which there is no easy answer. A different but related issue was considered in two recent cases: whether a party who is in financial difficulty can rely on an “endeavours” provision to avoid other contractual obligations.

Continue reading →