REUTERS | Yiannis Kourtoglou

I’ve talked before about the meaning of a kitchen sink claim, where one of the parties has thrown everything (and the kitchen sink) into its claim. The concept also crops up in adjudication enforcement proceedings, when the defendant raises as many arguments as it can to resist enforcement of the adjudicator’s decision. It is how Practical Law described the challenges in Morgan Sindall Construction and Infrastructure Ltd v Westcrowns Contracting Services Ltd, and I’m not going to argue with them. Continue reading

REUTERS | Dado Ruvic

In my previous blog post, (Mis)Understanding Perar, I referred to the practice of employers of amending the standard ABI bond wording to cater for misconceived difficulties in claiming under a performance bond following the insolvency of the contractor. At the time, there was no reported decision on a bond wording that contained such amendments, but we now have one.  Continue reading

REUTERS | Ilya Naymushin

This week I’m discussing Glencore Agriculture BV v Conqueror Holdings Ltd, which is a case arising out of a voyage charterparty for the transportation of corn from the Ukraine to Egypt.

Some of you might be wondering how this is relevant to construction disputes, but I assure you it is, both in respect of arbitration and adjudication. Continue reading

REUTERS | Darren Staples

My 2018 wish list

I always like looking forward to the forthcoming year, to things I’d like to see happen, and also reflecting on what I’ve wished for in the past, and seeing whether those things have been achieved. It’s a bit like being Ebenezer Scrooge in Charles Dickens’ A Christmas Carol, when he is visited by the ghost of Christmas past, the ghost of Christmas present and the ghost of Christmas yet to come (but without being a “bitter, cold-hearted miser”). Continue reading

REUTERS | Michaela Rehle

Welcome to 2018

Arnold Bennett:

“The chief beauty about time is that you cannot waste it in advance. The next year, the next day, the next hour are lying ready for you, as perfect, as unspoiled, as if you had never wasted or misapplied a single moment in all your life. You can turn over a new leaf every hour if you choose.”

As one year ends, so another year begins. Practical Law has been reflecting on events in 2017 and looking forward to 2018. Continue reading

REUTERS | Darren Staples

Dylan Thomas, A Child’s Christmas in Wales:

“It was snowing. It was always snowing at Christmas. December, in my memory, is white as Lapland, though there were no reindeers. But there were cats.”

December has been another grey and damp month, with a few falls of snow (even here in London). It has been enough to keep most people indoors, and we have had plenty to tell you about. Continue reading

REUTERS | Christian Hartmann

Lewis Carroll, Through the looking-glass:

“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less’.”

A selection of the more interesting decisions affecting construction and engineering practitioners during the final quarter of 2017. Continue reading

REUTERS | Mike Segar

Christmas quiz 2017

He wears red and white for important occasions and expects us all to behave. Yes, this year’s Christmas quiz is a tribute to Coulson J, soon to leave the TCC for the Court of Appeal.

Not only did Coulson J deliver some of this year’s most important judgments, he did so with his customary style. Along with the usual legal questions, many of this year’s teasers refer to his pronouncements. How many can you remember?  Continue reading

REUTERS | Nikola Solic

Nearly 20 years after the Construction Act 1996 was introduced to stamp out bad payment practices, you would be forgiven for thinking there must be a voluminous pile of case law in relation to the all-important final account. But you would be disappointed. While there is plenty of guidance from the TCC on interim payments, the courts have not had much to say about final accounts, particularly post 2011.

This is why Systems Pipework Ltd v Rotary Building Services Ltd is so welcome. Coulson J draws together the authorities on interim and final account payments and concludes (in a characteristically clear and to the point judgment) that the same rules apply to both. Continue reading

REUTERS | Regis Duvignau

One of the fears relating to adjudication is that a referring party will attempt to achieve success by grinding the responding party down through serial adjudications until it achieves the result it wants or the responding party gives in. In Benfield Construction Ltd v Trudson (Hatton) Ltd, Coulson J issued a clear warning that such an approach would not be condoned, stating:

“Allowing one party to raise one legal issue at a time, in serial adjudications extending over many months or even years, until that party achieved a result that it liked, would place an intolerable burden on the other party. It was not the purpose for which adjudication was designed.”

In the latest round of litigation between Mailbox (Birmingham) Ltd and Galliford Try Building Ltd, the court had to consider a similar argument, but this time in relation to whether a responding party could run piecemeal defences. Coulson J held that, in this case, the responding party had to run the whole of its defence.

The decision can be seen as a further attempt by the court to try and ensure that an adjudication deals with all the issues relevant to a dispute in order to provide a temporarily binding decision that is not subject to successive challenges in future adjudications. On that basis, it is to be welcomed. Continue reading