A recent post of mine considered two separate Coulson J judgments where the paying party attempted to set-off claims after the adjudicator’s decision had been issued. But what happens if the responding party raises a set-off (or counterclaim) during the adjudication process?
I recently blogged on Ampleforth Abbey Trust v Turner & Townsend Project Management Ltd and how the court in that case held that the liability cap in the project manager’s standard terms did not pass the Unfair Contract Terms Act 1977’s (UCTA) test of reasonableness.
RIBA’s recent announcement that it is about to release a 2012 version of its standard form consultancy agreements spurred me to think some more. How vulnerable to challenge under UCTA are terms excluding or limiting liability in standard form appointments, such as those produced by RIBA, RICS and ACE? Continue reading
In Stannard (t/a Wyvern Tyres) v Gore, the Court of Appeal held that there is no special modification of the rule under Rylands v Fletcher for cases involving the escape of fire. It is an essential requirement of this rule that the “dangerous thing” brought onto the defendant’s land should escape. In so-called fire cases, where fire escapes but the “dangerous thing” does not, the defendant will not be liable under Rylands v Fletcher, notwithstanding that the “dangerous thing” may have played a role in the start or spread of the fire.
In October 2011, I wrote a couple of blogs on the “simplified” Construction Act 1996 payment provisions. I concluded by saying that:
“…once the questions over the meaning of some of the amendments have been resolved, I actually think that the amendments will be quite effective at maintaining cash flow.”
One year on, I thought it was worthwhile reviewing how the new payment provisions are faring. Continue reading
What happens if the adjoining owner’s property is damaged when the building owner carries out his works, but the damage isn’t discovered until much later, after the building owner’s works have been completed?
In this scenario, let us assume that in 2009, the building owner gave the relevant party wall notices and a party wall award was made. The work was carried out in 2009-10 but the damage was only discovered in 2012. For simplicity, there was only one party wall surveyor, the agreed surveyor. Continue reading
I’ve lost track of how many times, over the last four years, that I’ve said it is tough being an adjudicator, given the pressures that are on us. With that in mind, it doesn’t surprise me when I read a judgment, only to discover the adjudicator did something that means his decision is not enforced.
In the latest instalment before the TCC in Leeds, HHJ Behrens said the adjudicator’s decision on his jurisdiction was wrong. I suppose it makes a change to finding that the adjudicator breached the rules of natural justice, although the end result is the same for the parties involved. Continue reading
Much has been said on the significant findings in Walter Lilly v Mackay about concurrent delays and global claims. However, the case also has a good deal to tell us about some other issues arising commonly in construction law. In particular, I found the discussion on design liability and notifying claims of interest, not least as they indicate the court’s views in two areas where the employer thought the wording of the contract benefited him.
Alliancing seems to be back in vogue. While it has always been in use in the UK over the last fifteen or so years, it has never really made it to the mainstream in quite the same way that it has in other jurisdictions. For example, in Australia, alliancing accounts for one third of public spending on infrastructure and is used on colossal new build projects in the water, road and rail sectors – including several worth over a billion Aussie dollars. To put it into context on a pound-for-pound basis, that’s like the UK government using alliancing for projects to the value of the whole of the 2012 Olympics infrastructure spend, every year.
I smiled to myself when I read John Redmond’s recent piece in Building magazine, as I know only too well the scenario he describes when talking about parties insisting on having the last word. In John’s example, the parties leave the adjudicator with just 12 hours to reach his decision after the final submission has been made. In my experience, it happens all too often and, sometimes, having 12 hours would be a luxury!
This time last year most construction practitioners were preoccupied with the amendments to the Construction Act 1996 (which had just come into force) and the impact of those amendments on their business. One year on, we decided to look at whether, in fact, 2011 was all a bit like Y2K, with the impact far less than was anticipated and with many of the expected problems failing to materialise. Continue reading