REUTERS | Yuriko Nakao
October 11, 2011

Common sense applied to “unconscious bias” meaning

I have written about bias on several occasions, including to discuss Edwards-Stuart J’s judgment in Fileturn v Royal Garden Hotel last summer. On that occasion, the issue before the court was whether there was bias because of an alleged pre-existing relationship between the adjudicator and Fileturn’s representative in the adjudication. At the time, I wrote that I was pleased the court rejected the argument, noting that the world of construction adjudication is a small one. I don’t want to think about the implications if it had gone another way.

I was equally pleased to see Flaux J in the Commercial Court adopt a similar common sense approach to the question of unconsicous bias in A v B. Continue reading →

REUTERS | Mike Blake
October 5, 2011

Who’s suing whom in the TCC in 2011?

Although the High Court may not yet be the domain of hashtags and the twitterati, two important reports have been published that allow us to see what is “trending” in the world of litigation:

We have also researched new claims started in the TCC in 2011 to see what this year’s activity tells us about the state of the construction industry and the extent to which it is involved in litigation.  Continue reading →

REUTERS | Issei Kato
October 4, 2011

What’s the point in writing it down?

Remember March 2004? Very few of us had a Blackberry, Katie Price and Peter Andre had recently met in the jungle, and Tony Blair was still Prime Minister. It was also the month that Gordon Brown, then Chancellor of the Exchequer, announced a review of the Construction Act 1996. Well, after seven years and what seems like endless consultation, the amendments to the Construction Act 1996 finally came into force in England and Wales on Saturday (1 October 2011). They have another month to wait north of the border.

Continue reading →

REUTERS | Herwig Prammer
October 3, 2011

Should I be worried about the costs management pilot?

The extension of the costs management pilot came into effect over the weekend (on 1 October). From now until the pilot ends on 30 September 2012, any case in the TCC and Mercantile Courts that has its first case management conference (CMC) during the pilot period, will be subject to the pilot. As such, the parties will be required to comply with Practice Direction 51G (PD 51G) and complete and file Precedent HB with the court. They will then be subject to the court’s costs management powers, including its approval (via the making of a costs management order (CMO)) of a party’s costs estimate. Continue reading →

REUTERS | Ilya Naymushin
September 28, 2011

September 2011 digest: D-day for Construction Act changes and costs pilot

TS Eliot, Little Gidding:

“What we call the beginning is often the end, and to make an end is to make a beginning. The end is where we all start from.”

We are on the home straight when it comes to the Construction Act 1996 changes coming into force. As 1 October fast approaches, we hope that we have done all that is necessary to prepare you. Don’t forget that you can still watch our webinar with Lynne McCafferty and John Hughes D’Aeth, or you can use our help and information note to guide you to the many materials that we have written on the new payment, adjudication and suspension rules. In a spot of crystal ball gazing, Paul Flook, Jennie Gillies and Lynne look at what may happen to adjudication. Continue reading →

REUTERS | Ronen Zvulun
September 28, 2011

Going fishing: can you use pre-action disclosure in adjudication?

Akenhead J’s judgment in PHD Modular Access Services Ltd v Seele GmbH provides a useful analysis of when a party can apply for pre-action disclosure under CPR Part 31.16 and the breadth of the order sought by the applicant, particularly where there are ongoing adjudication proceedings.

It is a common consideration where disputes arise between parties in the construction industry. One may seek useful documents from the other prior to any formal proceedings. The practice is often described (though sometimes unfairly) as “fishing”. The party may be looking to see if it can get a “nibble” when it dangles its metaphorical hook to gather more evidence for a claim. Continue reading →

REUTERS | Alexander Demianchuk
September 27, 2011

Writing the adjudicator’s decision

The Scheme for Construction Contracts 1998 does not include any guidance for the adjudicator on how he should set out his decision, albeit it sets out lots of detail about his jurisdiction and the things he can do in the conduct of the adjudication.

The form of the decision is left very much to the individual, based on the nature of the issues in the dispute that the adjudicator is considering. For instance, some disputes may lend themselves to the parties and the adjudicator using a Scott Schedule to deal with many of the financial aspects, others may not. Even if the adjudicator uses a Scott Schedule, the summary information needs to be included in the body of the decision. Continue reading →

REUTERS | John Kolesidis
September 26, 2011

Dealing with the practicalities of the amendments to the Construction Act 1996

It would be foolish to attempt to make predictions regarding the way in which case law might develop after 1 October 2011, save to say that a number of fertile battle grounds are sure to emerge as a result of the repeal of section 107 of the Construction Act 1996. Before battle lines are drawn, however, there are some obvious areas that parties (and their legal advisers) would be well advised to spend a moment considering.

Continue reading →

REUTERS | Aly Song
September 20, 2011

The meaning of “dispute”

The meaning of “dispute” in section 108 of the Construction Act 1996 is not something that often comes before the courts. After all, everyone knows that if a party refers more than one dispute to adjudication, the adjudicator will not have jurisdiction (unless the parties have agreed otherwise).

However, when the issue does arise, it is usually left to the court to interpret the situation on an enforcement application. That is precisely what Akenhead J did in Witney Town Council v Beam Construction recently. Continue reading →