We regularly act for clients negotiating professional appointments. Historically, in the domestic market, professional consultants had not sought to limit liability for losses caused by their negligence or breach. However, over the past few years, requests for limits on liability have become increasingly common.
It’s been interesting to follow some of the debate in the legal press and online about whether there is a new line of authority developing in England and Wales about concurrent delay under a construction or engineering contract.
To simplify, concurrent delay refers to a period when two events have occurred, both of which delay the progress of the works under the contract, and:
As an adjudicator, asking yourself the correct question (even if you get the answer wrong) is one of the keys to issuing a decision that should be complied with and which the parties will be able to enforce in the TCC. Over the years, we’ve had several judgments on the point. They date back to Dyson J’s 1999 judgment in Bouygues v Dahl-Jensen, where he said:
“If [the adjudicator] has answered the right question in the wrong way, his decision will be binding. If he has answered the wrong question, his decision will be a nullity.” Continue reading
Henry Wadsworth Longfellow, Afternoon in February:
“The day is ending, the night is descending; the marsh is frozen, the river dead.
Through clouds like ashes, the red sun flashes, on village windows that glimmer red.”
February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some dry, most are cold, while others tantalise us with weak sunshine and a sign of spring to come. Continue reading
In Roberts v Frohlich, Norris J considered whether the directors of a property development company, Onslow Ditchling Limited (ODL), had acted improperly prior to ODL’s liquidation.
ODL was incorporated as a special purpose vehicle to buy and develop a single site at Ditchling that had planning permission for 30 industrial units. The development was to be financed entirely with borrowed money and, ultimately, all the units were to be sold freehold. Both directors (Mr Frohlich and Mr Spanner) were experienced professionals and both had extensive experience in property development companies. Continue reading
Ann Minogue’s article Can we be of any assistance? (Building, 21 January 2011) asked whether there is a role for lawyers in the adjudication process. She wondered whether it is time to “review the industry’s original ‘no lawyer’ position, which [she] previously supported”.
Ann’s article suggests that in the run up to the Construction Act 1996 coming into force and during drafting of the Scheme for Construction Contracts 1998, there was “much discussion” about prohibiting parties from being legally represented in the adjudication process. I don’t really remember that. I wasn’t really involved in dispute resolution back then, I was still quantity-surveying full time. Continue reading
On 15 February 2011, Cotswold Geotechnical (Holdings) Ltd became the first company in the UK to be convicted of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (2007 Act).
For practitioners in health and safety, the first corporate manslaughter prosecution was eagerly awaited. It was hoped that with it would come clarification of some of the controversial elements of this new offence. However, while the case has attracted much publicity, the conviction and sentence have left many still unclear how the new legislation will actually impact on individuals and companies facing prosecution under the 2007 Act. Continue reading
The Court of Appeal’s recent decision in Robinson v Jones considered the extent of a contractor’s duty of care in tort not to cause economic loss. Specifically, it considered the extent, if any, to which the making of a contract in itself gives rise to an assumption of responsibility (in the Hedley Byrne v Heller sense) that justifies imposing a tortious liability for economic loss.
In short, the court decided that a “simple” building contract does not in itself give rise to the requisite assumption of liability, but that the same does not apply to professional appointments. However, the court did not express a view as to which side of the line design and build contracts fall, and I thought this was one of the most interesting aspects of this case. Continue reading
Or should that be “Damp squib Part 2”? (For Part 1, see Matt’s April 2010 post.)
When BIS launched its consultation on the Scheme for Construction Contracts 1998, we were all hopeful that, once our answers to the consultation had been submitted, it would pave the way for the amendments to the Scheme and the Construction Act 1996 to come into force before the end of 2010. Unfortunately, that was not to be and the results of BIS’s consultation have still not been published. Continue reading
In my December post I asked why an insolvent party would commence an adjudication when, even if it was successful and tried to enforce the adjudicator’s decision, the court would invariably grant a stay of execution. So, why bother one may ask?
The courts recognise that if money is paid over to an insolvent party, the paying party is unlikely to recover that money if it successfully reverses the position in future proceedings. This is why the court may grant summary judgment in favour of the insolvent party but makes it subject to a stay of execution.
Recently, I came across the situation where an insolvent party tried to argue that an adjudicator’s decision was “final and binding” and that monies should be paid over to it, the successful party. Continue reading