REUTERS | David Mdzinarishvili

As we all get into the festive spirit you may well find yourself chatting to family or friends about their latest project. Some may ask for your opinion or advice. But don’t get carried away; remember the cautionary tale of Burgess v Lejonvarn before offering any free advice. Continue reading

REUTERS | Stephen Hird

“You can’t always get what you want, but if you try sometimes you might find you get what you need.” Or so the song goes. It’s good advice in the run-up to Christmas, lest a lovingly gift-wrapped jumper fails to meet with your immediate approval.

So, as the festive season looms, what goodies are stacked in the aisles of the Construction Land Pop-up Store? And which of them is worth snapping up for our significant others (I’m thinking here of clients and contractors)? The choice is legion, so I shall pick out only a few of my favourite things. Continue reading

REUTERS | Kim Hong-Ji

Earlier this year, I wrote about how I thought it was time for some form of mentoring or shadowing scheme to be introduced to enable budding adjudicators to gain exposure to the practical and real-life issues that adjudicators experience and to be able to discuss those issues as part of their development.

I referred to the difficulties for individuals in gaining the experience they need, and drew an analogy with the chicken and egg:

“… gaining admission onto the adjudicator panels or getting your first appointment is even more difficult than it was 20 years ago. This is reflected in the fact that some panels require applicants to have sat as an adjudicator and produced, say, three decisions before they will be considered for inclusion. “

If you are not on a panel, how to do you get experience? If you are inexperienced, how do you get nominated? In those circumstances, what chance do you have of producing a decision (let alone three) that would allow you to be considered for inclusion? Continue reading

REUTERS | Paulo Whitaker

A recent decision from the Chancery court offers some helpful guidance on the interaction between entire agreement clauses and claims for misrepresentation. Many practitioners may be under the impression that an entire agreement clause has the effect of defeating a claim in misrepresentation. However, this case shows that is not necessarily the case.

If parties wish to exclude the right to claim for misrepresentation, clear language to that effect will be required. While Al-Hasawi v Nottingham Forest Football Club Ltd [2018] EWHC 2884 is not a change to the law, it is a helpful reminder of how these clauses are interpreted.  Continue reading

REUTERS | Christian Hartmann

Liquidated damages (LD) clauses are a fixture of construction contracts. As we all know, they are a secondary obligations to pay an agreed sum of money, arising upon breach of a primary obligation of the contract. In the case of a construction contract, this will invariably be in the event of delay: the failure to complete the works by a specified date.

LD clauses are the paradigm of something agreed very much in the hope that it will never be needed, when in the rosy glow of the start of a project, everyone is confident it will be completed on time. As a consequence, it may be that parties negotiating the sum don’t necessarily give it as much thought as they later feel it deserves when a project is overrunning, and the LDs are racking up.

However, the recent judgment of Mr Richard Salter QC in GPP Big Field LLP and another v Solar EPC Solutions SL (formerly known as Prosolia Siglio XXI) has confirmed, following on from Makdessi v Cavendish Squarethat a genuine pre-estimate of loss does not need to be negotiated in minute (or indeed any particular) detail in order to avoid being seen as an unenforceable penalty.  Continue reading

REUTERS | Ilya Naymushin

Earlier this year, Fraser J gave a significant judgment in which he:

  • Confirmed the circumstances in which fraud could be a successful ground to resist the enforcement of an adjudicator’s decision.
  • Developed a new circumstance, or principle, in which a stay of execution of an adjudicator’s decision may be granted.

Gosvenor London Ltd v Aygun UK Ltd was discussed by Dr Tim Sampson on this blog and is subject to an ongoing appeal. This post focuses on, and analyses in further detail, Fraser J’s so-called “principle (g)”. Continue reading

REUTERS | Brendan McDermid

My last post was a birthday piece, which looked at issues surrounding adjudicators being appointed and getting paid. One area I only briefly touched upon was natural justice (think allegations of bias). There is easily enough material for a series of blogs on the topic, given the range of allegations that can be raised to argue that an adjudicator has breached the rules. However, today I’m looking at just one aspect:

Did the adjudicator breach the rules of natural justice by deciding the dispute on a matter not raised by the parties?

This allegation was raised in Synergy Gas Services Ltd v Northern Gas Heating Ltd. Continue reading

REUTERS | Thomas Peter

Aspen Insurance UK Ltd & Liberty Mutual Insurance Europe Ltd v Sangster and Annand Ltd is a case that concerns a fire at a Scottish hotel, and liability under a Contractor’s Liability Insurance policy. It was heard by HHJ Waksman QC (as he then was) in the Commercial Court in June and, earlier this week, the Court of Appeal refused permission to appeal. Continue reading