REUTERS | /Hyungwon Kang
June 22, 2021

Training adjudicators in Canada

It is almost four years to the day that I blogged about Ontario’s plans to introduce prompt payment and adjudication provisions to construction contracts.

I can’t believe how time flies and that, not only did Ontario enact its Construction Lien Amendment Act (which amended the Construction Lien Act and introduced new prompt payment rules and adjudication to resolve payment disputes “faster”), I’m now in the middle of teaching an adjudication training programme to budding Canadian adjudicators.

Interested? Then read on to find out more. Continue reading →

REUTERS |
June 15, 2021

Everybody needs good NABERS – accommodating the new rating scheme in construction contracts

There’s a new kid on the energy efficiency ratings block in the United Kingdom. NABERS UK Energy for Offices, a cousin of the established Australian system, officially launched in the UK in November 2020.

The NABERS UK system focuses on the energy efficiency of office buildings when they are in use, to gauge actual performance in a way that is comparable with similar buildings. The scheme seeks to close the existing gap between theoretical design-based energy performance and actual in-use energy performance. A separate scheme exists for newly built or renovated offices and existing office buildings.

The energy rating systems we are familiar with in the UK construction industry tend to focus on design-based ratings, setting a target performance rating in the contract at the outset, with varying degrees of obligations on contractors and consultants to achieve such targets by practical completion of the project.

NABERS UK, on the other hand, seeks to measure and rate the actual energy use of offices once occupied with the intention of accurately measuring the performance of operating buildings. The scheme encourages projects to commit to achieve a certain NABERS rating in post-construction performance, based on a scale of 1 (poor) to 6 (market leading) stars. Continue reading →

REUTERS | Leonhard Foeger
June 9, 2021

The limits of a reply

A claimant who receives a defence is not required to take any further step in relation to the statements of case. It can consider the pleadings closed and seek to move on to directions, disclosure, evidence and ultimately trial.

Nevertheless, sometimes the claimant will want to react to or deal with the allegations made in the defence. In particular, the claimant or its advisors may think that there is some additional or alternative way of putting the claim which is not defeated by the pleaded defence. In principle, the Pre-Action Protocol process should mean that by the time proceedings are issued, the claimant knows the key elements of the defence it will have to meet, but that will not always be the case in practice.

It is tempting, in that situation, to plead the additional or alternative way of putting the claim in a reply. Key advantages of a reply, of course, include that it may be filed and served as of right and does not require the consent of the other parties or the permission of the court, and that it does not carry the usual costs consequences of amendment. Continue reading →

REUTERS | Clodagh Kilcoyne
June 8, 2021

Experts – time to go back to the drawing board?

As someone that deals mainly with construction and engineering disputes, it is sometimes easy to forget that the “T” in TCC stands for Technology. In my defence, I would hazard a guess that at least three-quarters of judgments from the TCC are associated with the “C” (Construction), but the lack of technology cases means that they often stand-out.

It’s one such case that I want to talk about this week, Dana UK AXLE Ltd v Freudenberg FST GmbH, which concerned pinion seals manufactured by FST and supplied to Dana who then fitted them to rear axles installed on Jaguar Land Rover vehicles. However, that’s as far as the judgment of Joanna Smith J goes into the technical side of the case, as the judgment actually concerns an application by Dana to exclude the technical evidence of FST’s experts. Continue reading →

REUTERS | Robert Galbraith
June 2, 2021

Transport for Greater Manchester v Kier Construction: Notice the little things

Preparing and sending contractual notices always makes me nervous. There are so many things to get wrong: is it in time, where should I send it, who to, how should I send it? Not to mention the actual content of the notice.

For those of you like me, the recent case of Transport for Greater Manchester v Kier Construction Ltd shows that we are right to worry about these things. Notices are important, and getting them wrong has serious consequences. Continue reading →

REUTERS | Siphiwe Sibeko
May 26, 2021

Termination – where did it all go wrong?

Is it just me who has seen a lot of disputes regarding wrongful termination since the beginning of the COVID-19 pandemic? A large proportion of those disputes have concerned whether a party has terminated in accordance with the provisions in a JCT contract. While parties frequently attempt to exercise termination provisions under JCT contracts, very few seem to do so effectively.

The termination provisions in JCT contracts are not to be taken lightly. There are a number of potential pitfalls for both employers and contractors.  Continue reading →

REUTERS | Yves Herman
May 25, 2021

Recovery of an adjudicator’s fees

As much as I love dispute resolving, whether that is adjudicating, arbitrating or mediating, this is not an altruistic endeavour of mine and, just like everyone else, one of the objectives is to be rewarded financially as a return on the investment of the time devoted to the process.

I’m sure I’m not alone in saying that I would prefer not to have to take steps to recover fees incurred by the parties. Therefore, I understand fully where the adjudicator in Davies & Davies Associates Ltd v Steve Ward Services (UK) Ltd was coming from when he sued for his unpaid fees.

It is a case that gave rise to a number of interesting points as you’ll discover if you read on.  Continue reading →

REUTERS | Denis Balibouse
May 19, 2021

Can you exclude or limit liability for a deliberate breach of contract?

The short answer to this question is yes. But matters become slightly more complicated when considering how this can be done.

In Mott MacDonald Ltd v Trant Engineering Ltd, the claimant (MM), an engineering contractor, brought a claim for alleged non-payment of its fees by the defendant (Trant) for the provision of design consultancy services in relation to the construction of a power station in the Falkland Islands. Trant raised a substantial counterclaim, alleging that MM had:

“… positively and deliberately refused to perform its obligations and had done so in order to put improper pressure on [Trant] to pay sums which were not due to [MM].”

MM denied any such breaches but contended that, in any event, the exclusion and limitation clauses in the parties’ agreement would operate to exclude or limit its liability, irrespective of whether Trant could establish that such breaches were fundamental, wilful or deliberate. MM applied for summary judgment on this point. Continue reading →

REUTERS | Toby Melville
May 18, 2021

Recent COVID-19 related force majeure decisions: what do they mean for construction contracts?

Roughly a year has passed since the COVID-19 lockdowns were implemented. Despite much upheaval, project delays, and supply chain issues, it appears that projects across the globe may finally be getting back a sense of normality. To this day, however, much uncertainty remains for project owners, contractors and sub-contractors regarding how COVID-19 will affect their legal rights under contract. Specifically, it remains unclear how courts and tribunals around the world will treat the pandemic for the purposes of force majeure provisions because so little judicial opinion has been proffered.  Continue reading →

REUTERS | Lucy Nicholson
May 17, 2021

Are DABs the new adjudication?

The JCT Dispute Adjudication Board Documentation 2021 (JCT DAB) has now been published, for use with the 2016 Design and Build Contract (DB) and the Major Project Construction Contract (MP). But, before we look at how it will operate, it is worth stepping back and looking at what dispute boards are meant to do and why they are now seen as an option for UK projects. Continue reading →