REUTERS | Mohammad Ponir Hossain

In 2013, Sir Alan Ward in Wright v Michael Wright suggested that it is perhaps time to review the rule in Halsey v Milton Keynes that to oblige truly unwilling parties to refer their disputes to mediation would be to impose an unacceptable obstruction on their right of access to the court.

Sir Alan wondered whether some bold judge would perhaps accede to an invitation to rule on the questions he raised about Halsey (including whether what was said was obiter) so that the court could look again at Halsey in the light of (what was in 2013) ten years of developments in this field.

Seven years on, despite much mention of Halsey, no one has taken up Sir Alan’s invitation. However, two recent cases indicate that this may soon happen. Continue reading

REUTERS | Thomas Peter

The Terminator’s dilemma

The jurisprudence on the effect of termination on the recoverability of liquidated damages for delay has many things in common with the Terminator film franchise. First, both began ages ago and seem likely to run on and on forever. Second, the instalments in each are of variable quality and sometimes appear to have been produced in ignorance of what came before. Third, each concerns a “Terminator”: an antagonistic figure resolved to bring things to an abrupt end, whether that be via (i) terminating a contract or (ii) the remorseless annihilation of all human life.  Continue reading

REUTERS | Toby Melville

At the moment, we seem to have more Scottish than English adjudication enforcement judgments to talk about. I’m not entirely sure why that is, although I’ve heard the TCC is re-directing some adjudication enforcements to the County Court in the Central London Centre. That may be better for the parties if they get an earlier hearing date, but it means fewer published judgments, which isn’t so great for those of us who regularly blog about these things!

So, I turn to Lord Clark’s judgment in Field Systems Designs Ltd v MW High Tech Projects UK Ltd, where the issues were whether the adjudicator had failed to exhaust his jurisdiction and/or give adequate reasons and, if he had, was it a material breach of the rules of natural justice.  You may recall these issues also popped up in another Scottish judgment (Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd), which Matt looked at earlier this year.

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REUTERS | Denis Balibouse

You don’t have to be an avid reader of specialist construction magazines to know that the quality of new build housing is a big issue at the moment. Both the national press and social media are awash with stories (often sensationalised) of defects, cracks, subsidence, fire safety issues and all manner of other problems. The housebuilding industry is firmly in the spotlight.

New home buyers have always taken comfort from what is generically known as “NHBC cover”. That is, the 10-year insurance backed warranty schemes offered since 1936 by the NHBC and more recently by a range of other companies including Premier, Checkmate and BLP Insurance. Of course, a primary driver for taking out these warranties is that they are required by mortgage lenders who are members of UK Finance (previously the Council of Mortgage Lenders) in order to obtain a mortgage on a new home. However, they are also seen as a valuable form of consumer protection and have always been marketed as such by the NHBC and others.

Against that background, the Court of Appeal’s recent decision in Manchikalapati v Zurich Insurance plc makes depressing reading. I won’t rehearse the sorry tale that gave rise to the litigation, since this is well summarised in Charlie Thompson’s blog.  My focus is on the reaction of Zurich (and its successor, East West Insurance Company) when faced with the claim, and its efforts – apparently now heading to the Supreme Court – to avoid paying out under the policy. Continue reading

REUTERS | Jose Cabezas

As last year drew to a close, Lord Doherty handed down an adjudication enforcement judgment in Babcock Marine (Clyde) Ltd v HS Barrier Coatings Ltd, which was concerned with whether the adjudicator had failed to give reasons or failed to exhaust his jurisdiction. There was also an issue over whether there had been a material breach of the rules of natural justice and it is this latter point I’m going to look at today. Continue reading

REUTERS | Hannah McKay

FIDIC 2017: two years on

Last month I attended the FIDIC International Contract Users’ Conference in London, two years after the formal launch of the 2017 Red, Yellow and Silver Books. I wanted to find out whether anyone was using them and if so, what did they think? In my blog following the 2017 launch, I made some initial observations. In this blog post, I consider how far these hold true. Continue reading

REUTERS | Stefan Wermuth

On 5 December 2019, the Court of Appeal handed down its judgment in Manchikalapati and others v Zurich Insurance plc and East West Insurance Company Ltd. The underlying case concerned a large block of flats in Manchester that were seriously defective.

There are a number of lessons to learn from the Court of Appeal proceedings and much that is of use for construction and insurance practitioners alike.
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REUTERS | Shamil Zhumatov

First things first, Happy New Year to you all.

The case I want to talk to you about this week is ISG Construction Ltd v English Architectural Glazing Ltd, which was handed-down by HHJ Stephen Davies in December 2019. Those of you already aware of the case will know that it concerns ISG’s Part 8 application following an adjudicator’s decision it was dissatisfied with. Although the Part 8 issues raised are interesting (and I will briefly touch on them) as the title suggests, I want to focus on a different part of the case, namely a particular aspect of ISG’s bespoke extension of time provisions. Continue reading

REUTERS | Corbis

January is undoubtedly the most popular time of year for new year resolutions, but the Business & Property Courts (B&PCs) got a head start on all of us by publishing their 2020 resolutions in early December.

As many of you will be aware, in 2018 the B&PCs set up a Witness Evidence Working Group, consisting of B&PC judges (including Waksman J of the TCC), barristers, solicitors and in-house counsel, to consider whether factual witness statements in the High Court are fit for purpose. The working group has now published a set of recommended reforms that will be relevant for anyone practising in the TCC. Continue reading

REUTERS |

At the start of a new decade where automated, self-executing smart contracts are likely to become more commonplace, perhaps also in the construction sector, it is interesting to consider how such a development might impact construction dispute resolution processes. A smart contract is simply a computer protocol intended to facilitate, verify and enforce performance of a contract. In short, it is about contract law and related business practices being facilitated through the design of electronic commerce protocols. Understanding the role blockchain technologies can play in this context is key.

Notwithstanding the general success of construction adjudication as an interim form of construction dispute resolution, almost all final determination forms of construction dispute resolution remain lengthy and costly processes for all those involved. Marginal net economic wins even for the “successful” party regularly lead to both parties feeling dissatisfaction by the time the dispute is resolved. Even in the case of adjudication – and alternative dispute resolution processes – sunk costs can often feel disproportionate to the sums disputed, and there is an appetite for cheaper, swifter solutions – especially to resolving more straightforward and lower value claims. Continue reading