With the increased use of “cost reimbursable” or “cost plus” contracts such as the IChemE Green Book and NEC3 option E, now is a good time to consider the employer’s right of audit in more detail.
REUTERS | Jason Lee
February 27, 2013
Making use of audit rights
REUTERS | Jumana El Heloueh
February 26, 2013
Adjudicator bias after PC Harrington v Systech
The most obvious consequences of Lord Dyson’s judgment in PC Harrington v Systech (non-payment of adjudicators for non-enforceable decisions where there has been a breach of the rules of natural justice) have been written about and discussed at length over the three months since the Court of Appeal handed down its judgment.
However, one topic that has not featured (as far as I’m aware), is the idea that the judgment may, in some way, impact on an adjudicator’s behaviour. For those of you wondering what an earth I am talking about, let me explain. Continue reading
REUTERS | Luke MacGregor
February 22, 2013
So long, SAAMCo? The impact of John Grimes v Gubbins
Ever since the House of Lords handed down their now seminal judgment in SAAMCo, in almost any case involving allegations of professional negligence where it could be said that the damages claimed resulted from a fall in the market, defence lawyers up and down the land have pointed to SAAMCo and written a lengthy letter to the claimant’s legal team explaining why the losses claimed were too remote. However, following the Court of Appeal’s judgment in John Grimes v Gubbins, the claimant’s solicitors now have ammunition to write a lengthy letter in reply.
REUTERS | Ina Fassbender
February 19, 2013
One adjudicator’s decision binds another adjudicator
Everyone involved in adjudication proceeds on the understanding that an earlier adjudicator’s decision binds a subsequent adjudicator. However, I wonder how often people look to see where that principle comes from.
It was an issue before Akenhead J in Arcadis v May and Baker recently. Continue reading
REUTERS | Mike Blake
February 13, 2013
How to get what you want – delay analysis
In so far as there can be trends among construction lawyers, it is, “trendy” to question whether delay is an area of “expertise”. Whether or not you use the evocative term “expert” or stick to my preferred, “analyst”, it is interesting to explore why the area of delay evidence is contentious and engenders so much frustration for those involved in construction disputes. My view is that this due to a mismatch of expectations in what is being offered.
REUTERS | Luke MacGregor
February 12, 2013
Ask the team: is a development management agreement caught by the Construction Act?
This month’s Ask the team considers what a development management agreement (or development project management agreement) is and whether it is caught by the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996). Continue reading
REUTERS | Brian Snyder
February 12, 2013
Fraudulent misrepresentation in construction disputes
I thought this week that I would discuss when happens when a dispute gets out of hand. Disputes, by their very nature, can be very stressful for the parties. The outcome can affect the survival of businesses, whether people keep their jobs or even their houses. However, when crimes are involved, disputes take on a different dimension.
REUTERS | Eric Thayer
February 6, 2013
BIM information manager: new risks and opportunities?
One of the new opportunities that Building Information Modelling (BIM) offers the construction industry is taking on the role of “BIM information manager”. As part of their institutional BIM protocol drafting, a number of professional bodies (including, we understand, the Construction Industry Council, whose protocol is expected soon) have begun to develop the role.
In-house BIM teams in major contractors are also developing protocols and, as part of that process, have been fleshing out standard job descriptions for the BIM information manager.
But what is that role and why is it central to the effective implementation of BIM?
Continue reading
REUTERS | Mike Hutchings
February 5, 2013
No reason to be complacent in costs management
In May last year, I commented on the judgment in Henry v News Group Newspapers concerning one of the costs management pilot schemes.
This was a case where costs had risen substantially from the court-approved budget under the defamation costs management pilot scheme. The parties had reached a settlement, with the defendant agreeing to pay the claimant’s costs on the standard basis. The question for the Senior Costs Judge, Master Hurst, was whether there was a “good reason” to depart from the court-approved budget. He held that the provisions of the defamation pilot were mandatory and that the claimant had “largely ignored” them. He regarded the claimant’s failure to notify the defendant and the court of her rising costs as critical. Continue reading
REUTERS | Kim Hong-Ji
February 5, 2013
What happens when you don’t want the same adjudicator again?
I saw an interesting point tucked away in the middle of paragraph 10 of Akenhead J’s judgment in Arcadis v May and Baker. I will leave others to focus on the alleged breaches of the rules of natural justice (including that the adjudicator took a restrictive view of his own jurisdiction, went off on a frolic of his own, failed to consider a defence and exhibited apparent bias). I’m more interested in the parties’ choice of adjudicator the second time around.