I recently wrote about an expert’s role in construction disputes and, in particular, the role they play in adjudication. As I said then, there are no rules about using experts in adjudication, or protocols that cover how they should behave. An individual may be bound by guidance provided by his professional body (such as the RICS’ practice note on surveyors acting as expert witnesses), but that is as far as it goes.
Looking at the law reports, some may think that the only thing the TCC ever deals with these days is the enforcement (or not) of adjudication decisions. Whatever happened to construction law? Well, luckily it still lives and breathes. In Walter Lilly & Co Ltd v Mackay and DMW Developments Ltd, Akenhead J delivered a judgment that goes to the heart of many of the burning issues that have been causing construction lawyers to scratch their heads.
The more cynical amongst us may think that the growing frequency of unavailability deductions on PFI/PPP projects is a sure sign that employers are going the extra mile to claw back the cost of PPP or PFI projects.
However, in their eagerness to recoup some costs, employers, sponsors or authorities can (and often do) ignore the contractual provisions that must be satisfied before establishing any entitlement to levy unavailability deductions.
A few weeks ago I gave you some of my practical tips for making or defending extension of time claims in adjudication. This week I thought I’d give you some practical tips concerning money claims, by which I mean, claims for loss and expense or damages.
I appreciate that it might appear that I’m “teaching grandmother to suck eggs”, but I make no apologies because we can all do with a refresher of the basics at times. I know I certainly can. Indeed, I suspect that a surprising amount of us have a Nutshells or equivalent hidden away in the desk drawer and refer to it in times of need. Alternatively, we can just look at PLC! Continue reading
Last week I looked at some current trends in ICC arbitration. I highlighted some of the parties’ concerns, in particular the time and expense of pursuing arbitration.
This week, my focus is on the International Chamber of Commerce’s (ICC) response: in particular, its new arbitration rules (the 2012 ICC Rules).
I had a call from a client (I’ll call him “Mr D”) not so long ago. Mr D was developing a scheme behind an existing façade, which the lovers of early 20th-century architecture at planning control had insisted needed to be retained.
Mr D’s contractor therefore had to construct various brackets and supports during excavation in order to prevent the collapse of the existing façade while he built the permanent structures. Due to the delicate nature of this task and the fact that Mr D’s site was surrounded by some potentially litigious neighbours, Mr D was keen to ensure that his structural engineer acted as a second pair of eyes looking over the contractor’s temporary works and their design. Continue reading
Shakespeare’s The Tempest:
“Be not afeard; the isle is full of noises,
Sounds and sweet airs, that give delight and hurt not.
Sometimes a thousand twangling instruments
Will hum about mine ears, and sometime voices
That, if I then had waked after long sleep,
Will make me sleep again: and then, in dreaming,
The clouds methought would open and show riches
Ready to drop upon me that, when I waked,
I cried to dream again.”
Whatever you thought of the spectacular opening ceremony, from Shakespearean quotes to Wiggo’s bell-ringing and from JK Rowling reading JM Barrie to the 204 copper petals, the London 2012 Olympic Games and Paralympic Games are well and truly underway. The British team has its “top four” medal target, with hopes of surpassing the 47 they won in Beijing four years ago, and the first medals have already been handed out. Continue reading
The SCL has recently launched a consultation on the use of experts in construction disputes. It wants to know why parties instruct experts, how parties use their experts and whether the tribunal should have a greater say in the expert’s role in the dispute.
The SCL’s July newsletter suggests that the consultation aims to “provoke wide-ranging discussion” and to “reflect some concerns expressed, for example, about the cost of expert evidence and the independence of some [experts]”. The consultation is looking at all forms of tribunal, including the courts, arbitration, adjudication and other forms of ADR, like mediation and expert determination. Continue reading
Most European international contractors will no doubt have noticed a significant increase in the number of arbitrations that they have had to commence or defend over the past ten years. In fact, over that period, the workload of the Court of the International Chamber of Commerce (ICC) has grown by at least 40%.
As I’ve said before, it is part and parcel of acting as an adjudicator that you may, one day, find your actions being discussed in court, with one party challenging the enforcement of your decision. It hasn’t happened to me for a while, but it recently happened for the first time to my co-director, Jonathan. It’s a strange feeling, especially the first time it happens, and your natural reaction is to worry about what you did (or didn’t do), and to sit down and analyse whether you’d react the same way, the next time you are faced with the same sort of situation. It’s a bit like poring over your exam results and looking again at your exam paper, wondering if you went wrong, where you went wrong, and how you could have done better.