REUTERS | Rodrigo Garrido

Retention release?

Build UK recently published a set of minimum standards to be applied when using retentions, as well as their roadmap to zero retentions by 2023. This follows on from Build UK’s non-binding recommendations on contract terms, about which my colleague, Adriano Amorese, recently blogged.

For those of us involved in drafting and negotiating construction contracts, Build UK have also helpfully provided some template drafting for the JCT D&B contract, the JCT D&B sub-contract and the NEC4 ECC.

I applaud Build UK in their vision to have “fair and transparent payment practices” and, ultimately, to help cash flow throughout the construction supply chain where even a small retention could have a big impact on whether a contractor is able to remain trading. However, I’m yet to be convinced that getting rid of retentions is appropriate across the industry.  Continue reading

REUTERS | Christian Hartmann

Late last month, judgment was handed down in Network Rail Infrastructure v ABC Electrification Ltd. A decision of Joanna Smith QC, sitting as a deputy judge of the High Court in the TCC, Network Rail is of interest not only as an example of meticulous contractual analysis, but as a case that highlights the manner in which bespoke amendments to an ICE Target Cost contract can have a profound impact on the operation of the Target Cost mechanism.

Continue reading

REUTERS | Baz Ratner

Back in 2014, Matt blogged about the issue of whether adjudication is cost-effective for low value disputes. This was following the Court of Appeal’s judgment in Walker Construction (UK) Ltd v Quayside Homes Ltd where, following a low value adjudication over an outstanding payment of £23,400, the parties took the matter to trial and the defendant’s costs alone were an eye-watering £345,800.

This was a very extreme example, but there is no doubt that adjudication costs can be prohibitive for some lower value disputes. There are a variety of reasons for this. Some blame adjudicators spending too much time and not keeping enough control of the process, and others blame the increasing involvement of party representatives, whether lawyers or claims consultants, making the process more complicated than was originally intended. There is no doubt that these are both factors, and some adjudicators need to learn how to keep their fees proportionate when dealing with lower value disputes.

As for the involvement of lawyers and claims consultants, I don’t think that it should be considered a negative as, speaking from an adjudicator’s perspective, they can add great value regardless of the size of the dispute. Furthermore, it has led to a wealth of adjudication jurisprudence which, in turn, has helped to ensure that adjudicators comply with the rules of natural justice (subject to the time constraints), and proceed to reach decisions that are within their jurisdiction and are enforceable. In hindsight, given the wide scope of disputes that can be referred under the Construction Act 1996, the significant involvement of lawyers and claims consultants was always inevitable. Continue reading

REUTERS | Russell Cheyne

Our client, an employer, recently approached us for advice on a building contract and associated collateral warranties entered into a few months before. One of the collateral warranties, entered into between our client and a sub-contractor, seemed to impose unlimited liability on the sub-contractor.

The collateral warranty included none of the express exclusions of liability that appeared in the sub-contract and did not contain any “equivalent rights of defence” or “no greater liability” clauses. It was otherwise in what could be described as a standard market form and included no express provisions which limited it in any way by reference to the terms of the sub-contract.

In the event that there were defects for which the sub-contractor was liable, was it possible that the sub-contractor could have greater liability under the collateral warranty than it had under its sub-contract? Continue reading

REUTERS | Nacho Doce

The question of just how wide a party wall surveyor’s jurisdiction is to award compensation to an adjoining owner (under section 7(2) of the Party Wall Act 1996) has been the subject of a considerable amount of debate among party wall surveyors, so every opportunity for judicial scrutiny and clarification should be welcomed. Therefore, the slightly unusual circumstances that unfolded in the 2012 unreported case of Davis v Trustees of 2 Mulberry Walk provides us with some useful guidance in relation to the operation of section 7(2).

Continue reading

REUTERS | Mukesh Gupta

On 7 May 2019, FIDIC launched the Conditions of Contract for Underground Works (Emerald Book), the latest in its Rainbow Book series. The Emerald Book is a joint endeavour between FIDIC and International Tunnelling and Underground Space Association (ITA-AITES). This is the first dedicated international standard form for underground works. In this blog, I look at some of the fundamental principles behind the Emerald Book work and provide some first impressions. Continue reading

REUTERS |

I read Matt Molloy’s blog, What happens when adjudicators make a mistake? with interest, as he mentioned the case of Willow Corp Sarl v MTD Contractors Ltd.

Bryan Cave Leighton Paisner acts for Willow in a dispute with MTD in relation to its role as main contractor in the design and construction of the Nobu Hotel, Shoreditch. Over the last 18 months the parties have been involved in a series of adjudications and court hearings, including a Part 7 claim by MTD and a Part 8 claim by Willow.

Last month, judgment was handed down by Pepperall J in relation to MTD’s Part 7 claim and Willow’s Part 8 claim, which were heard at the same time. I think the judgment raises at least two interesting issues, which I see that Matt touched on in his blog:

Continue reading

REUTERS | Wolfgang Rattay

This blog may be rather late in the day. Perhaps that’s appropriate, as it touches on the consequences of delay. Also, I’m happy to admit that the Court of Appeal’s decision in Triple Point Technology Inc v PTT Public Company Ltd has already rightly received much comment from others. So one could argue for a blogging equivalent of the five-second rule: if one’s thoughts aren’t quickly launched into the blogosphere, perhaps they should be left to moulder where they lie.

That said, Triple Point directly impacts on commercial and drafting practice in a way most cases simply don’t. (Naturally, I remain a keen student of all TCC cases dealing with adjudication enforcement.) Allowing some longer time for reflection on its ramifications may well justify a four-month rule here – the more so given that practitioners have now had an opportunity to discuss Triple Point with clients. Anyway, that’s my excuse for being late to the ex parte (if you will). Continue reading

REUTERS | Denis Balibouse

I had the idea of doing a piece about what parties can do when they think an adjudicator has made a mistake back in February when I saw the judgment in Northern Ireland Housing Executive v Dixons Contractors Ltd. Therefore, it is simply a coincidence that, last week, another one of my decisions was referred to in the law reports.

There are a number of parallels between the two judgments. In NIHE v Dixons, the adjudicator was asked to decide whether there was an ambiguity or inconsistency between a code of practice and certain drawings. It seems he went one way and, when the matter got to court, it went the other way. Something similar happened to me, although I was concerned with the terms of an agreement dealing with a revised practical completion date. The only major difference is that my decision was severed and partially enforced, whereas the other adjudicator’s decision was not.

However, this post is not about Willow v MTD (I’ll leave others to discuss that one), I’m looking at the use of Part 8 applications following adjudication. Continue reading