REUTERS | Aly Song
March 27, 2012

Claims consultants beware

I recently wrote about West Country Renovations v Mr & Mrs McDowell. While it wasn’t strictly necessary for the purposes of the case, Akenhead J produced a judgment providing guidance on the value and types of claims that the TCC in the High Court in London will deal with.

Continuing with the theme of providing helpful guidance, earlier this month Akenhead J produced a judgment following a disclosure application in Walter Lilly & Company Ltd v Giles Mackay and DMW Developments Ltd. The guidance in this judgment will be of particular interest to claims consultants and those that appoint them. Continue reading →

REUTERS | Alex Domanski
March 20, 2012

Prohibiting conditional payments under the amended Construction Act

To pay or not to pay, that is the question…

Not surprisingly, there have been quite a few blogs on this site over the last several months on the amendments made to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996) by the Local Democracy, Economic Development and Construction Act 2009 (LDEDC Act 2009). Many of these have focussed on ambiguities in the drafting of the new provisions as much as the substance the new law itself – see, for example, The “not so great” section 108A debate. It seems we lawyers cannot help but engage in a bit of Parliament bashing, horrid lot that we are. Continue reading →

REUTERS | Paulo Whitaker
March 20, 2012

The vexed question of adjudicators fees

As far as I’m aware, during the years of debate over amendments to the Construction Act 1996, when it came to costs, the focus of most peoples’ attention was on getting rid of contract clauses requiring the referring party to pay both parties’ costs (so-called Tolent clauses). I don’t really recall that much time devoted to what some practitioners now regard as a significant problem, namely the level of costs incurred by the adjudicator and the parties to an adjudication.

Continue reading →

REUTERS | Alex Domanski
March 14, 2012

Liquidated damages – fun and games

With the London 2012 Olympics now just around the corner, only time will tell whether the hotly negotiated liquidated damages (LADs) provisions in many “Games-related” contracts will be put to the test. We are involved in a number of projects where the timing of completion is absolutely critical, given the impending Games and the sheer number of visitors these will bring to the capital.

Contracts for retail, stadia, hotels and infrastructure have all been programmed and negotiated with the Games in mind. It is worth pausing a moment to consider the role of liquidated damages in these contracts and whether, given the extraordinary circumstances, they should be viewed in a different light. Continue reading →

REUTERS | Jumana El Heloueh
March 13, 2012

Are people arbitrating more?

Jonathan’s last two posts have looked at a few aspects of arbitration, not least the fact that many of the skills we learn as adjudicators are highly useful when it comes to resolving disputes in other ways, especially as an arbitrator.

As someone primarily involved in resolving disputes via adjudication, I’m all too familiar with the skills that Jonathan talked about. Like many others, I’d like to think they are also part of my repertoire and why people appoint me to resolve their disputes. Continue reading →

REUTERS | Kim Hong-Ji
March 7, 2012

The transferable skills of the adjudicator

Recently, Matt and I gave a talk to RICS members in Dubai while in the UAE on business. I’m not sure who enjoyed the evening more though, the delegates who sat through “loss and expense claims in practice“, or Matt and I listening to their stories of the disputes that arise on projects in the Arabian Peninsula. While anyone who has watched the development of this area will know that the Emirati’s appreciate how to do building on a massive scale (the Burj Khalifa is really something to behold), it’s also clear that they also know how to get into some sizeable disputes.

Continue reading →

REUTERS | Ahmad Masood
February 29, 2012

February 2012 digest: spring is in the air

Percy Bysshe Shelley, The Sensitive Plant:

“And spring arose on the garden fair, like the spirit of love felt everywhere;
And each flower and herb on earth’s dark breast rose from the dreams of its wintry rest.”

Spring is here, with the first signs of flowering bulbs, buds breaking through and birdsong in the air. With thoughts of spring, our attention during February has been on matters environmental, including new guidance (and a revised definition) on contaminated land and a new waste water national policy statement. We have also seen a number of consultations that will have an environmental impact, including on changes to the Building Regulations 2010, the building control system and energy efficiency in buildings. Continue reading →