REUTERS | Jason Lee

In Costain v Tarmac, the TCC set out useful guidance on the application of the duty of good faith and clause 10.1 of the NEC3 conditions.

The court found that Costain had not made out its case on estoppel in relation to Tarmac’s limitation defence, but it went on discuss whether the existence of a mutual trust and cooperation obligation (which the court likened to an express duty of good faith) affected that assessment. In this case on the facts it did not, but it shows that the court will consider such duties.

The judgment is of interest because although NEC3 is one of the most prevalent forms of contract in the construction industry (particularly as far as government infrastructure projects are concerned), there has been relatively little case law showing how the courts will apply the duty to act “in the spirit of mutual trust and co-operation” and/or express obligations of good faith generally. Continue reading

REUTERS | iStockphoto

The Court of Session has issued new requirements for commercial actions. These requirements took effect from 27 March 2017 and highlight a change in emphasis for alternative dispute resolution in Scotland.

The new requirements only apply to commercial actions in the Court of Session. The definition of a commercial action is wide. Broadly speaking, a commercial action includes any transaction or dispute of a commercial or business nature. Construction disputes would usually be classified as commercial actions.

Under the Rules of the Court of Session, there is a specific procedure governing commercial actions. The purpose of this procedure is to streamline the court process to allow more management by the judge, which will hopefully result in a quicker and more cost effective resolution of the dispute. Continue reading

REUTERS | Beawiharta

The title of this post comes from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”

Lazarus was a landlord and tenant case, where one of the issues was whether the landlord had carried out repairs to the value that was being claimed from the tenant.

In my view, there are certainly parallels to be drawn with some of the adjudications that I’m seeing nowadays, where parties are arguing that an otherwise valid payment notice should not be complied with because of fraud. Continue reading

REUTERS | Petar Kujundzic

The court has jurisdiction to make charging orders over property, shares or other interests by virtue of section 1 of the Charging Orders Act 1979 (COA 1979).

In construction claims, a charging order can be an appropriate method of enforcing, or at least securing, a judgment where there is a risk that the judgment debtor may go insolvent. Continue reading

REUTERS | Corbis

It has been almost a month since electronic working became compulsory for professional users of the Rolls Building courts, soon to be called the Business and Property Courts, which Paul Darling OBE QC discusses this weekThis has come as a shock to many people, although we have been using the scheme for nearly two years in the TCC (as Jennifer Varley discussed in her blog, Electronic working in the TCC: is the ball in our court now?). We have embraced it, finding that it saves time and costs as well as large amounts of photocopying. Continue reading

REUTERS | Lucy Nicholson

We haven’t seen a case referring to approbation and reprobation for quite some time, at least not in a substantive sense (I know, I checked). Therefore, I read with interest HHJ McKenna’s judgment in Dawnus Construction Holdings Ltd v Marsh Life Ltd, where the court held that by inviting the adjudicator to exercise his powers under the slip rule, Marsh Life had:

“… waived or elected to abandon its right to challenge enforcement of the Decision since it had elected to treat the Decision as valid.”

How things might have been different if Marsh Life had made an express reservation of its rights. Continue reading


In the last few months, there have been a number of developments in the court system of considerable potential importance to technology and construction practitioners.

A new grouping, the Business and Property Court, has been formed by the judiciary. This essentially comprises the Chancery Division, the Commercial Court and the Technology and Construction Court (TCC). The media release that announced this decision described the new entity as a:

“… single umbrella for Business Specialist Courts across England and Wales.”

Continue reading

REUTERS | Dominic Ebenbichler

A few years ago I wrote a post on whether adjudicators should act judicially, which looked at a talk by Lord Hamilton, who was then the president of the Scottish Court of Session. Lord Hamilton posited the question, “What has acting judicially to do with adjudicators?”, and I considered a number of the judicial values that he referred to, concluding that I hoped that all adjudicators had something of those values in mind whenever they accepted an adjudication appointment.

This post came to mind when I was reading the Court of Appeal’s judgment in Shaw v Grouby, where one of the defendants’ grounds of appeal was related to whether, because of the way the judge conducted the trial, it had been fair. It all boiled down to whether the judge’s interventions with witnesses meant he was “entering the arena”, which cast doubt over his objectivity and impartiality, and raised the prospect of the witnesses being unable to fairly put their evidence before the court. Continue reading


The evolution of the CPR in the wake of the Jackson reforms included the well-known introduction of the “menu” of disclosure options at CPR 31.5(7). The net effect was to promote, as appropriate and applicable, a movement away from well-established “standard” disclosure to a more tailored approach. With the accompanying provisions of CPR 31 and its Practice Directions, the new approach to disclosure was designed to force parties (and the courts) to consider disclosure and production (and the best approach to adopt) at a very early stage. Continue reading

REUTERS | Fayaz Kabli

In Lejonvarn v Burgess, the Court of Appeal upheld the first instance decision (which Oliver Pearson blogged about) that an architect/project manager providing services gratuitously and in the absence of a contract owes a tortious duty to exercise reasonable skill and care in performing those professional services.

The Court of Appeal also clarified the relevant test to apply in cases involving a relationship that was “akin to a contract” and made some interesting points about the scope of the duty that Mrs Lejonvarn owed which may have a wider application. Continue reading