REUTERS | Robert Pratta

To be is to be perceived. The 18th century philosopher George Berkeley found himself pondering whether a tree still exists if there is no-one to perceive it. In the recent case of Glen Water v Northern Ireland Water a similar question came up regarding notices. Can a letter be a notice if neither party perceived it as such? Are notices like philosophical trees? Continue reading

REUTERS | Rodrigo Garrido

Earlier this year, I wrote about O’Farrell J’s judgment in Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd. That case was all about legal and equitable assignment.

The parties have now been back before the court, this time in front of Coulson J, and have been arguing about the scope of two adjudications. The first concerned Mailbox’s claim for liquidated damages (which O’Farrell J had previously considered and I wrote about), the second was about Galliford Try’s subsequent extension of time claim.

As I’m sure you are thinking, it all boiled down to a question of what the crystallised dispute was and whether the second adjudicator had jurisdiction. Continue reading

REUTERS | Amir Cohen

Although I have never done so myself, it is clearly acceptable for an adjudicator to ask parties to comment on a case or other point of law that neither has mentioned in their submissions. It is also clearly acceptable for an adjudicator to ask parties to expand on and/or clarify contentions made in their submissions, and this is something I do regularly. Indeed, I think that it is essential for adjudicators to ask parties to clarify points where they are uncertain as to the meaning of parts of the submissions. Otherwise, how can an adjudicator ensure that the process is fair? This is particularly so given that the vast majority of adjudications these days proceed on a documents-only basis.

It was with this is mind that I read with interest Turner J’s judgment in Miley v Friends Life Ltd. Turner J was dealing with the defendant’s application to recuse himself on the grounds of apparent bias. It arose following an email he had sent to the parties identifying issues that he wanted assistance on. Continue reading

REUTERS | Lisi Niesner

In June 2017, in an unprecedented move by Saudi Arabia, Bahrain, Egypt, the UAE and Libya, the State of Qatar was subject to an economic blockade. Overnight, 50% of the GCC had closed land, sea and air connections to the peninsular. A list of 13 demands have been issued to the Emiri Diwan in Qatar. Qatar’s refusal this week to meet what it considers to be unreasonable demands means that it can expect a potential escalation in the economic sanctions already meted out.

Inevitably there are repercussions for commercial parties operating throughout the region. With stadia, roads and a metro network to build in the run-up to the 2022 World Cup and Qatar’s 2030 Vision, these are particularly acute for the construction industry.

This post considers three potential avenues that contractors and sub-contractors might pursue in circumstances where the performance of their obligations becomes either impossible or increasingly and prohibitively difficult should this period of political confrontation be prolonged. Continue reading

REUTERS | Jean-Paul Pelissier

The Supreme Court handed down its judgment in Globalia Business Travel SAU (formerly Travelplan SAU) v Fulton Shipping Inc of Panama on 28 June 2017. It brings to an end an extraordinary saga.

The parties had entered a charter party of a vessel owned by Fulton. There was a dispute and the charterer redelivered the vessel to Fulton in October 2007. Fulton treated the charterer as in anticipatory breach of contract and accepted the breach as terminating the charter party. There was no available chartering market on redelivery. Shortly before redelivery, Fulton sold the vessel for US $23.7 million. There was a significant difference between the value of the vessel when it was sold and its value when it would have been redelivered if the charterer had not breached the contract. This was because the market crashed between the time of actual redelivery and the date when the vessel should have been redelivered had the charter party run its course.

The issue was deceptively simple: should credit be given for the additional profit Fulton obtained by selling the vessel? Continue reading

REUTERS | Amr Abdallah Dalsh

When I was reading Stuart-Smith J’s judgment in Lobo v Corich, I started thinking about the different types of party that come to adjudication, or get embroiled in the process as a responding party. As you might imagine, not everybody takes part enthusiastically. In fact, some could be said to be extremely reluctant.

As Lobo v Corich demonstrates, attempting to bury your head in the sand is not a sound tactic. (Apparently it wouldn’t be very good for an ostrich either, as it wouldn’t be able to breathe!) Continue reading

REUTERS | Herwig Prammer

Lord Denning in Packer v Packer [1953] 2 All ER 127:

“What is the argument of the other side? Only this, that no case has been found in which it has been done before… [but] [i]f we never do anything which has not been done before, we shall never get anywhere.”

Lord Denning may have said this in the context of a family law case, but it could be said to apply equally to what the country now faces in its negotiations with Europe, which we now know will be taken forward by Theresa May’s government. The new legislative programme was set out in the Queen’s speech, although it didn’t contain much for construction lawyers (and was only just passed without amendment). Continue reading

REUTERS | Ivan Alvarado

Practical completion is a key concept in any construction project. It has a significant impact on a party’s rights and obligations, and represents a major milestone in the overall project timetable. Under the majority of construction projects, it marks the point at which the clock starts running for the overall transfer of risk from the contractor to the owner.

Despite that, practical completion can, at times, be a difficult and uncertain concept, as the parties discovered in GB Building Solutions Ltd v SFS Fire Services Ltd (t/a Central Fire Protection). The case provides a timely reminder of the confusion that can arise in relation to practical completion and the significant disputes that can hinge upon its timing. Continue reading

REUTERS | Vincent Kessler

Party wall disputes may be common, but it is uncommon for them to reach the High Court. Therefore, practitioners will be surprised to see that one dispute between neighbours in North London (Lea Valley Developments Ltd and Mr Thomas Derbyshire) has yielded two useful TCC decisions relating to the Party Wall etc. Act 1996 (PWA 1996). Continue reading