REUTERS | Jason Lee
November 22, 2011

NAP v Sun-Land: not such a bad result after all?

Last week Matt blogged about the case of NAP v Sun-Land. He made the point that “it was clear to me that the employer’s representatives were less familiar with the adjudication process than one might like…”. While that may well have been the case, the employer’s representatives nevertheless succeeded in achieving a partial stay of the adjudicator’s decision, so arguably, it was not such a bad result after all.

Let me explain how they achieved the partial stay and the interesting issue that arises from the case. Continue reading →

REUTERS | Jason Lee
November 22, 2011

Don’t let the Pre-Action Protocol go

A Technology and Construction Court (TCC) working party is undertaking a review of the Pre-Action Protocol for Construction and Engineering disputes. I understand that there is support from some quarters for its abolition.

I would like to add my voice to Catherine Gelder’s blog: to stand up for the Protocol and record my support for it. I urge others to do the same.

The Protocol, in my view, performs a useful function and it would be a retrograde step to see it go. No doubt, its working could be improved. Learning from our experience so far, I think the Protocol should be amended, not abolished. Continue reading →

REUTERS | Petar Kujundzic
November 21, 2011

Do adjudication rules’ costs provisions comply with amended Construction Act 1996?

There has been considerable debate over the meaning of section 108A of the Construction Act 1996 (as introduced by the LDEDC Act 2009). Most of that debate has centred on the interpretation of section 108A(2) and whether imprecise drafting means that something like a Tolent clause may still be permitted in certain circumstances. However, some in the industry are beginning to raise concerns about whether a number of well-known adjudication rules comply with section 108A(1). Part of this concern relates to the meaning of “allocation”. Continue reading →

REUTERS | Navesh Chitrakar
November 16, 2011

Challenging an arbitrator’s award is hard to do

If you have agreed in your construction contract that any dispute will be referred to arbitration, rather than the courts, the arbitrator’s decision has to be seriously wrong before the court will “interfere” and give leave to appeal the award. Despite this, cases involving appeals from an arbitrator’s award on a point of law under section 69 of the Arbitration Act 1996 seem to be flavour of the month.

In HMV v Propinvest (not yet reported), the Court of Appeal considered the question of appeals under s.69(3)(c)(i), which provides that leave to appeal on a point of law shall be given only if the court is satisfied that, on the basis of the findings of fact in the award, the decision of the tribunal on the question of law is obviously wrong. Continue reading →

REUTERS | Christian Charisius
November 15, 2011

Horses for courses in adjudication

Last week, I commented on the importance of the parties ensuring their dispute is in a safe pair of hands. At the time, I was alluding to the importance of getting a competent adjudicator, who knows what he is doing and will not let the parties down (by which I mean, having an enforceable decision). However, my “safe pair of hands” idea could apply equally to a party’s own representatives.

This thought was brought home to me most recently by Edwards-Stuart J in NAP v Sun-Land. Continue reading →

REUTERS | Navesh Chitrakar
November 9, 2011

Common sense prevails in the Supreme Court: Rainy Sky

Keen readers of this column will recall my bafflement at the Court of Appeal’s decision in Rainy Sky SA v Kookmin Bank. An (as it seemed) routine call on an advance payment bond was denied on the basis of one word – “such“. The word had been carelessly inserted into a clause of the bond, presumably with little thought on either side as to its meaning and effect. Adopting the restrained and temperate language that is my hallmark on such occasions, I described it as “ludicrous” and defying business common sense. I even evoked the most damming insult of all – “with respect”. I concluded by wondering if the Supreme Court would be allowed the last word on the subject.

Continue reading →

REUTERS | Jason Lee
November 8, 2011

Buying a property? Don’t forget about the Party Wall Act 1996

When buying a property, the Commercial Property Standard Enquiries (CPSE.1) (enquiries 1.3 and 2) provide standard form, specific enquiries about party walls. However, those enquiries only ask about breaches of the Party Wall etc. Act 1996 (PWA 1996) relating to party structures on the boundary of the site, and to provide copies of any notices, awards and agreements that might exist in connection with those party structures. The answers to those enquiries will not provide any illumination as to works yet to be carried out, or liabilities and expenses that are still to accrue following a sale of the land.

If the PWA 1996 may apply to works that have been or are in the process of being carried out (or are planned), what should a buyer be looking out for? Continue reading →

REUTERS | Fabrizio Bensch
November 2, 2011

The new first edition FIDIC sub-contract

Last month FIDIC published its official “First Edition” of “Conditions of Subcontract for Construction, Building and Engineering Works designed by the Employer” – the subcontract primarily intended to be used with the FIDIC Red Book and the harmonised MDB Conditions (the Pink Book).

As the “Test Edition” was launched almost 2 years ago (in December 2009), many will question whether this is really news at all. But the “First Edition” has made a number of changes to the Test Edition and some of these raise interesting questions…

Continue reading →