Berent v Family Mosaic Housing & London Borough of Islington has clarified a property owner’s liability for property damage caused by their trees. The decision will be welcomed by local authorities, tree owners and their insurers, and includes wider guidance for property damage cases.
The judgment in WW Gear v McGee Group (and Jon’s subsequent post on it) got me thinking beyond using CPR Part 8 in adjudication and more generally about the meaning of declaratory relief. In my experience, most adjudications are about money allegedly due from one party to the other and so I wondered how often a party seeks declarations from the adjudicator.
A subscriber recently asked us what was meant by the “net basis” (as opposed to the “gross basis”) for calculating an extension of time due to a contractor under a construction or engineering contract. This is just one part of the issues that surround concurrent delay in construction contracts and this post uses a simple example to identify the net basis and gross basis for an extension of time. Continue reading
Anyone that swims in the pool of construction disputes will, at some point, have come across an agreement to settle a construction dispute. Lawyers will often pour over the wording in painstaking detail, arguing for the inclusion or exclusion of certain clauses. (I suspect there’s a stock list depending on whether they’re acting for the contractor or the client.) Even when, as James Clarke so aptly put it recently, you’ve reached the “stale sandwiches” stage of a mediation, lawyers will often make the parties miss the last tube home in order to argue over phrases such as “all and any claims”.
However, sometimes the parties themselves try and reach a settlement agreement without seeking legal advice, and that can lead to disastrous consequences for one or both of them. I doubt that there is a better case to illustrate this point than the recent TCC judgment in Point West London v Mivan. Continue reading
It seemed as if everything was up for discussion at the TeCSA and TECBAR symposium which BLP hosted last Monday evening. The ever impressive line up of speakers included Ramsey J and Akenhead J, to present talks on the theme of the interventionist judge and better case management.
The slight irony of the evening seemed to be that, as Akenhead J suggested during his address, good case management is often viewed as being when the judge does not have to intervene to any great extent. An interventionist approach would only be called for when the parties themselves could not agree the way forward on case management. Continue reading
I’m not really into labels (designer or otherwise). For example, I tell people that the label “letter of intent” is potentially misleading. Better to call it a “letter”, so that you are more likely to read it with an open mind, and work out what it actually says.
I have been looking at the JCT Design and Build Contract, 2011 edition (JCT DB11) for a new client who wanted some bespoke amendments. I read the whole contract from start to finish. Not something I do very often, but a worthwhile exercise. It’s too tempting (and takes less time) just to look at the parts that are under discussion. Anyway, as I was reading through, I noticed that some of the payment obligations say that money is to be paid (or recovered) “as a debt” and some don’t. Continue reading
Following the repeal of the in writing or evidenced in writing rule in section 107 of the Construction Act 1996, the scope of the disputes referred to adjudication is changing. Adjudicators are now being faced with disputes where the parties:
One of the issues is whether adjudicators are up to this challenge. Continue reading
Sir Edward Coke, Institutes: Commentary upon Littleton:
“Reason is the life of the law, nay the common law itself is nothing else but reason… The law, which is the perfection of reason.”
The first half of 2012 has seen a number of important decisions affecting construction and engineering practitioners: Continue reading
Alfred, Lord Tennyson, To the Queen:
“Her court was pure; her life serene; God gave her peace; her land reposed;
A thousand claims to reverance closed, in her as Mother, Wife and Queen.”
As a nation, we are obsessed with the weather. Regular readers of this digest will know that it features prominently here too. So it is no surprise that June’s digest starts with comments about the never-ending wind and rain, which didn’t appear to dampen spirits too much over the double bank holiday and the Queen’s diamond jubilee celebrations, even if it did prevent much play during the third test at Egdbaston and has already affected play at Wimbledon. We can only hope that the jet stream meanders north, to its more usual summer position, in time for the start of the London 2012 Olympic and Paralympic Games. Continue reading
It seems that the question of remedies in arbitration for parties seeking to exercise rights under the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) was an afterthought in the Bill’s progress through Parliament.
At section 8, the Third Party Rights Act 1999 provides that if a third party’s right to enforce a contract term is subject to an arbitration agreement, the third party is treated as a party to the arbitration agreement in any dispute as to enforcement of the relevant term. In practice, this means that where the underlying agreement has an arbitration clause, the third party is forced to go to arbitration to enforce its rights if that is what the promisor insists upon (Nisshin Shipping v Cleaves & Co).
Blair J’s judgment in the Commercial Court in Fortress v Blue Skye is a variant on this theme. Continue reading