With all aspects of court proceedings coming under scrutiny and reform to ensure they are cost effective, it is perhaps not surprising that the Technology and Construction Court (TCC) is looking at the Pre-Action Protocol for Construction and Engineering Disputes.
Is it a waste of time and money, or does the upfront investment lead the parties to settlement?
The TCC has announced that it has a working party undertaking a review to find out. Continue reading
Time and time again, clients are confused about the differences between an obligation to maintain insurance and a limitation on liability clause. Confusing the two is a daily occurrence amongst builders, engineers, project managers and even company directors. Consequently, it is common for a client to return from a meeting and say “I agreed with James it’s £10 million PI” only for you to later find out that there has been a mix-up between the £10 million liability cap being offered and the amount of professional indemnity insurance (PII) to be maintained under the contract.
When I read Edwards-Stuart J’s judgment in Hyder v Carillion, two things struck me:
This post considers the first point. I’ll save the second, “walking a tightrope” point, for another day. Continue reading
JM Keynes, The End of Laissez-Faire:
“The important thing for Government is not to do things which individuals are doing already, and to do them a little better or a little worse; but to do those things that at present are not done at all.”
Last month we were still awaiting an effective date for the Construction Act 1996 changes. Now we know that 1 October 2011 is D-day in England and Wales, and 1 November in Scotland. We also know about the changes to the Scheme for Construction Contracts 1998 (and its Scottish equivalent), with three different versions (for England, Wales and Scotland). At least there is consistency in the Exclusion Order that each country has published, but yes, we have three of those too. Continue reading
On 27 July, the Supreme Court overturned the Court of Appeal’s decision in Nurdin Jivraj v Sadruddin Hashwani, holding that arbitrators, because of their unique, non-subordinate, relationship with the parties, are not “employees” for the purposes of Equality Act 2010 (the Act) and therefore anti-discrimination legislation does not apply to the appointment of arbitrators. This removed a serious threat to London’s position as a major seat for international arbitrations.
In November 2010, I reported on the TCC’s decision in McIlroy v Quinn. That judgment had flagged up yet another problem for a claimant seeking to take advantage of the Third Parties (Rights Against Insurers) Act 1930 (1930 Act). On 18 July 2011, the Court of Appeal described the TCC judgment as “remarkably unfair” and, crucially, wrong in law.
In the UK, we tend to talk more about PFI and PPP than about concessions. In the EU, a consultation on concessions closed in September 2010, but the results have not yet been published. We can only assume that the Commission has been waiting for the outcome of its Green Paper consultation on the modernisation of EU public procurement policy (the results of which were published in June this year) before concluding its findings on concessions.
Although the topic of concessions was excluded from the consultation on the Green Paper, the outcome of the consultation will undoubtedly affect the future of concessions. This post considers what a concession is and what the future holds for concessions in the UK.
…where should I start?
If you are a construction lawyer or a commercial manager who needs to understand how the changes to Part II of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996, also known as the HGCRA 1996) will affect construction contracts, this Ask the team gives you the basics, based on PLC Construction’s materials. In particular, we suggest a draft agenda that can be used for a training session. Continue reading
In adjudication there is always the potential of the losing party who is, probably, liable for some if not all of the adjudicator’s fees, trying to avoid paying those fees. If the losing party can dress that up as a challenge to the reasonableness of the fee they are being asked to pay, the more likely they will make the challenge.
Therefore, I was pleased to see the judgment in Fenice v Jerram Falkus which, I believe, reinforces the previously held view that the courts are unlikely to find that an adjudicator’s fees (both the hourly rate and time spent) are unreasonable. Continue reading
The latest HSE figures show that fatalities on construction sites rose in 2010 (from 41 to 50) for the first time in four years.
This was not a revelation: every week the industry press reports a serious accident on a construction site somewhere in the country, but it still shocked me. With all the recent focus on health and safety in the industry, why is it still such a dangerous place to work? Fragmentation is perhaps one of the biggest challenges to health and safety in the industry.