Court of Session decides that to enforce adjudicator’s decision would be a breach of Human Rights.
Whyte and Mackay v Blyth & Blyth is the second decision in a long-running dispute over a whisky bottling facility. Readers may recall Lord Malcolm’s initial, somewhat surprising decision, which I blogged about last May. Continue reading
Adjudication enforcement decisions often throw up interesting discussion points and two judgments from last week are no exception. The first concerned Lord Malcolm’s decision in Whyte and Mackay v Blyth & Blyth, where the court considered the adjudicator had breached the rules of natural justice as there was a “very significant omission” in his decision and reasoning. While that of itself would make a good blog topic (and is something Jonathan will be looking at), it was the application of Article 1 of the First Protocol of the European Convention on Human Rights (ECHR) that is more likely to attract commentators north and south of the border. In fact, Alastair Walls has written about it today.
The second judgment, Ramsey J’s decision in Willmott Dixon v Newlon Housing Trust, is the one I’m interested in. Continue reading
I recently advised on the question of whether a liquidated damages clause was a penalty. My attention was drawn to the recent case of Cavendish Square Holdings BV and another v El Makdessi. You may not have come across this judgment, as it is not a construction case, and does not concern liquidated damages. Rather, the question of whether a clause was a penalty arose in the context of a restraint of trade clause. Nevertheless, the court’s decision provides an important reminder to those negotiating liquidated damages clauses in construction contracts.
This issue came up over lunch recently. It got me thinking about whether I would like to see my decisions made public or whether I prefer the current position whereby they remain private between the parties and only get an airing in public if there is an issue on enforcement. Even then, the decision is not put into the public domain, rather bits and pieces are shared by the judge in the judgment, along with the adjudicator’s main findings.
Miriam Nothman might be a lawyer’s worst nightmare. She was the last litigant in person to take a case to the House of Lords – and win it. Proof, if needed, that not all litigants in person make frivolous claims. However, the Court of Appeal’s judgment in Wright v Michael Wright Supplies Ltd indicates that the judiciary has concerns over the increasing number of litigants in person and the effect this is having on the conduct of litigation.
One of the reasons that adjudication is so popular is the speed in which a temporarily binding decision can be obtained. However, as a result the parties can be under immense pressure to produce submissions within very limited timescales. In particular, the responding party may only have seven days to prepare a response. When you take into account the other commitments of its employees and party representatives, this might be a tall order. Similar problems can arise with the reply, particularly when new defences are raised in the response.
However, one of the consequences of these compressed timescales is that submissions tend to be longer than necessary. Consequently, an alternative title to this post might be “Why say it in ten words when 100 will do?”. Continue reading
For almost 60 years (most recently in Cadogan Petroleum Holdings Ltd v Global Process Systems), courts have been asked to consider what happens to money already paid by way of instalments in relation to a contract if the contract is rescinded and the seller retains the property that is the subject matter of the contract.
In summary, the cases have held that if the pre-payment of an instalment is not intended to be a forfeitable deposit, the seller’s right to retain the instalment is conditional upon completion of the contract and the transfer of title to the seller. In order to determine whether it is a forfeitable deposit, one has to construe the terms of the actual contract as a whole. Continue reading
Lewis Carroll, Alice’s Adventures in Wonderland and Through the Looking-Glass:
“I wonder if the snow loves the trees and fields, that it kisses them so gently? And then it covers them up snug, you know, with a white quilt; and perhaps it says ‘Go to sleep, darlings, till the summer comes again’.”
It may officially be spring, but it feels like spring is on hold this year. With biting cold winds and snow blanketing much of the country, it definitely feels more like January than March, and it looks certain that all modern March temperature records will be broken (but not in a good way). Much of the animal and plant world may sensibly still be hibernating, but that hasn’t been the case in the legal world. Continue reading
I am always nervous when contracts that I had a hand in drafting end up in the High Court. Thankfully it hasn’t happened too often, but when it does there is an inevitable frisson as I wonder what the judge will make of it. Will he agree that my drafting means what I intended it to say? Will he give it an entirely different interpretation? Or – worst of all – will he (to quote Salmon LJ) condemn it as a “farrago of obscurities”?
Over the last few months both Jonathan and I have written about various aspects of expert evidence, whether that is on the difficulties an expert may face, educating experts or what an appraiser is. However, another area of expert evidence that seems to get little coverage is what an adjudicator should do, if they suspect one of the experts involved in the dispute has breached his professional duties in some way.