Everyone involved in the construction industry is familiar with the terms “interim binding” and “final and binding”, especially when referring to the effect of a certificate. Equally, they are familiar with the idea that an adjudicator’s decision is an interim one, which can only be overturned by a court, arbitrator or by agreement.
So, you can imagine my surprise when I read Edwards-Stuart J’s recent judgment in Straw Realisations v Shaftsbury House. Continue reading
On Money, money, money, Abba sang:
“I work all night, I work all day, to pay the bills I have to pay, ain’t it sad.
And still there never seems to be a single penny left for me, that’s too bad.”
Money was high on the agenda in October as the coalition government delivered its long-awaited spending review. Continue reading
As Matt Molloy observed in his blog post last week, it is rare to find a quantity surveyor (QS) being sued in what one might term a “traditional” construction dispute, such as, for instance, the renovation of a domestic dwelling.
Why is that? No QS would ever claim that it is because every QS is always perfect. Instead, it seems to me that the answer can be found by posing a rather simpler question first: on a construction project, who does what? Continue reading
The Supreme Court’s decision in Oceanbulk Shipping & Trading SA v TMT Asia Ltd & Ors, in which Berwin Leighton Paisner acted for Oceanbulk, was handed down on 27 October 2010. In a landmark ruling the Supreme Court revisited those instances where without prejudice negotiations may lose their privileged status. The court introduced a new exception to the without prejudice rule, the “interpretation exception”, overturning the previous decision of the Court of Appeal.
According to the Office for National Statistics, between 2007 and 2009 construction output in the UK fell by just under 12.5%. And, although recent figures suggest that 2010 may see some improvement on the 2009 nadir, no-one seems particularly confident that the industry will return to pre-2007 levels any time soon, even after the meagre new rations offered out in the government spending review.
Last month I wrote about parties subsequently appointing an adjudicator as their expert, and the potential for the adjudicator/expert to be, or appear to be, biased. It was interesting that the post attracted two comments, with each one putting one side of the argument in a situation where the adjudicator was subsequently invited to act as a solicitor for one of the parties.
That got me thinking about situations where the adjudicator is appointed multiple times, either by the same parties on one project, or by one party on different projects.
With the long term rise of design and build contracting, some commentators in the insurance industry also point to an increase in cases where a design and build insurer refuses cover in the event of a claim. This clearly affects the contractor, but employers need to be careful too, as the absence of insurance coverage may seriously limit their financial recovery.
What can an employer do to protect its position? Continue reading
It isn’t often that you see quantity surveyors caught up in an adjudication as one of the parties, although they often feature heavily in other respects (as the parties’ experts, representatives or even as the adjudicator). In fact, I am not personally aware of a claim against a quantity surveyor, although I have seen breach of duty claims against other members of the professional team (like engineers and architects). Quantity surveyors do not seem to feature much in court cases either.
I’m not sure any of this means quantity surveyors are perfect, but there must be a reason why they aren’t sued that often. Continue reading
Another Saturday afternoon in Panama (I’ll be permanently back in the UK at the end of October), and I am sitting on the balcony again with the ubiquitous milky coffee. But instead of staring out into the Pacific and letting my mind wander I’ve been reading Tony Blair’s book. Whether or not you are a fan I would definitely recommend it.
Commercial agreements often include obligations to use reasonable endeavours, and variations on that theme. The construction industry is no exception.