I wrote last time about Mid Essex Hospital Services v Compass Group (trading as Medirest). Others have commented about the case and how the Court Appeal interpreted the good faith clause. What has received less attention was the emphasis on punctuation and how that, and an imaginary caesura (see below), was the basis for the decision.
I recently attended a topping out ceremony organised by a developer client. At the ceremony, I was extremely interested to hear the developer attribute the early completion of this particular superstructure to the spirit of good faith in which the parties had worked. Having drafted the JCT-based building contract between the developer and the contractor, I knew that it did not contain an express obligation on the parties to act in good faith and that, traditionally, English law has been reluctant to imply such terms into contracts.
Offshore wind farms tend to split the public like Marmite: most people seem to be either vocal supporters or vehement opposers. Unlike Donald Trump, who clearly falls into the latter category, I’m in the former camp. I think that they are essential to meet our future energy needs. However, one thing that I’ve always wondered is, how do contractors actually go about building them? The case of MT Højgaard v E.On sheds some light on how the foundations are constructed, and it’s clearly not an easy task.
AA Milne, When we were very young:
“They’re changing guard at Buckingham Palace – Christopher Robin went down with Alice.”
The Palace guards may change daily but we all know that the pace of change is much slower in the legal world. That said, the sweeping reforms of the civil justice system, which came into force on 1 April under the auspices of the Jackson reforms, look set to have a significant impact on practitioners. We highlighted just a few issues for those using the TCC and Lord Dyson warned about non-compliance with the new rules. We also got a sneak-preview of how the courts are likely to deal with approved budgets under the new costs management rules. Continue reading
Mediation is a hot topic at the moment. One reason for this is because of Sir Alan Ward’s judgment in Wright v Michael Wright Supplies Ltd; another is the changes to the Civil Procedure Rules (CPR), which came into force at the beginning of April.
The TCC’s judgment in RWE Npower Renewables Ltd v J N Bentley Ltd got me thinking about the possibility of “appealing” an adjudicator’s decision. While we all accept that adjudicators’ decisions are of a temporary or interim binding nature, in practice, court or arbitration proceedings rarely follow on from the majority of decisions. That means many decisions stand as determining the parties’ rights and obligations forever (which sounds a very long time!).
But what if you don’t like the adjudicator’s decision, is there anything else you can do rather than proceeding to a full blown trial? Continue reading
In January this year, I wrote about Compass Group (trading as Medirest) v Mid Essex Hospital where the High Court enforced a good faith clause and criticised a party’s conduct (involving a £84,450 chocolate mousse deduction). Having suggested that the courts are now more open to such arguments, the Court of Appeal reversed the decision in March, indicating the opposite.
So is that the end of the road for good faith clauses? Not quite, I suspect, both because of the specific clause used in Medirest and another High Court decision in Yam Seng PTE v International Trade Corporation. Continue reading
Some forms of contract include a priority of documents clause, others do without them. So what is the correct approach? Should your building contract, sub-contract or professional appointment include a priority of documents clause? Does the recent TCC decision in RWE Npower Renewables v J N Bentley have anything to add? Continue reading
The uncertainty surrounding how to enforce dispute adjudication board (DAB) decisions that are binding but not yet final is a favourite topic for debate amongst FIDIC practitioners. However, it is more than simply an academic point. Arbitral tribunals are repeatedly grappling with it and are broadly divided, adding to the uncertainty. That FIDIC has recently (on 1 April 2013) taken the unusual step of publishing a Guidance Memorandum on this narrow issue underlines that it is a real concern for users of FIDIC contracts. This led me to ask whether this guidance moves matters forward?
A couple of weeks ago I went to Edinburgh to give a talk to the Society of Construction Law on global claims in the wake of Walter Lilly v Mackay. However, both before and after the talk, a number of the Scottish delegates were more interested in talking about their very own Mackay case, White and Mackay v Blyth & Blyth, as Lord Malcolm’s latest judgment had been published the day before.