REUTERS | Mark Blinch

This summer I had the pleasure of traveling to Toronto and meeting Canadian construction lawyers to discuss the introduction of a prompt payment and adjudication regime in Ontario on 1 October 2019.

As Matt Malloy outlined in his blog from 2017, the provisions of the Ontario Construction Act take inspiration from the UK. However, while for the most part, prompt payment and adjudication in Ontario will be familiar to UK practitioners, there are a few subtle, but interesting, differences that take account of, and arguably improve on, the UK system. Continue reading

REUTERS | Alexandre Meneghini

Recent decisions considering time bars and notification provisions have generated considerable commentary and discussion over the last few months. One of these is Boskalis Offshore Marine Contractive BV v Atlantic Marine and Aviation LLP (the “Atlantic Tonjer”) which concerned notification provisions in a payment clause and the timely challenge of disputed invoices before they were due for payment. Continue reading

REUTERS | Denis Balibouse

A few weeks ago, I looked at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, where I focused on the mentoring – pupil adjudicator points, and left the crystallisation of the dispute points to others.

This week, I’m looking again at Lord Doherty’s judgment in Dickie & Moore Ltd v McLeish, only this time it is his second opinion that I am interested in, which focused on severing the adjudicator’s decision.

And if you are wondering why I’m quoting from Alexander Dumas’ Three Musketeers, then read on… Continue reading

REUTERS | Antonio Parrinello

The complexity of modern construction projects often means that a raft of specialist sub-contractors, managers, administrators and certifiers are engaged, each bringing their own expertise to bear on the works.

However, when things go awry, the result can be a similarly complex and fragmentary multi-party dispute. Several such disputes have found their way to the TCC in recent years – for example, the litigation between Amey LG Ltd, Amey Birmingham Highways Ltd and Birmingham City Council, which Fraser J characterised (at paragraph 3) as “tortuous”.

In circumstances where the same defendant is being sued by a number of different claimants in respect of the same or related matters, but in separate sets of proceedings, the following two questions commonly arise:

  • To what extent is that defendant bound by determinations, both factual and legal, made in other proceedings against different claimants?
  • Will communications with the defendant(s) in those other proceedings be privileged?

Continue reading

REUTERS | Paulo Whitaker

In a step change from the days of Mid Essex Hospital Services NHS Trust v Compass Group UK and Ireland Ltd (trading as Medirest) in which the Court of Appeal rejected the notion of a general doctrine of good faith, many construction contracts now include an express requirement to act in “good faith”.

This trend is not confined to long term PPP agreements and alliancing arrangements. It is also seen in standard form contracts, such as the “mutual trust and co-operation” wording found in the NEC ECC contracts and (where selected) the supplemental collaborative wording found in the JCT:

…the parties shall work with each other and with other project team members in a collaborative and co-operative manner, in good faith and in a spirit of trust and respect…”.

Commercial practitioners will also be aware of the recent judicial focus on relational contracts, into which contracts a duty of good faith may be implied. Last year the Court of Appeal noted that a PFI contract may be classified as a relational contract in Amey Birmingham Highways Ltd v Birmingham City Council. Continue reading

REUTERS | Hannah McKay

Both contractors and developers often enter into joint ventures to carry out a specific project. It enables parties to bid on larger projects, pool their resources, including specialised knowledge, and spread risk across the participants. The recent decision in Doosan Enpure Ltd v Interserve Construction Ltd serves as a reminder to participants in construction joint ventures of the potential pitfalls of intra-JV disputes. Continue reading

REUTERS | Reuters

In my last post, when I considered the exclusions to “construction operations” set out in section 105(2) of the Construction Act 1996, I was looking at the supply-only exception and its proviso in section 105(2)(d). I concluded  that post by saying:

“I think that this case further reinforces the need to abolish the exclusions in section 105(2).”

When Matt posted the blog on LinkedIn, my views about the abolition of the supply-only exclusion prompted some lively debate, with some people in agreement and others pointing out some potential practical difficulties of abolishing it. However, my sense is that there is more consensus about abolishing the power generation exclusion in section 105(2)(c), following cases such as Severfield (UK) Ltd v Duro Felguera UK Ltd, where Coulson J (as he was then) was highly critical of it.

In this week’s post I want to discuss another section 105(2)(c) exclusion case, C Spencer v MW High Tech. Continue reading

REUTERS | David Gray

Have you read the SCL’s delay and disruption protocol? I am sure you have, as the SCL website notes that it has been downloaded 38,500 times. But if not, I would recommend it to you, in particular its helpful glossary of terms, its reminder of the various formulae for calculating lost overheads and profit, and its description of various methods of delay analysis.

Unlike the first edition of the protocol, which recommended time impact analysis, the second edition (published in February 2017) does not recommend one particular method, but sets out the following six methods together with their features, and pros and cons:

  • Impacted as-planned analysis.
  • Time impact analysis.
  • Time slice windows analysis.
  • As-planned v as-built windows analysis.
  • Longest path analysis.
  • Collapsed as-built analysis.

What the protocol lacks, of course, is any standing either in terms of incorporation into contracts or judicial recognition. The SCL website carries a list of judicial references not just from the courts of England and Wales but also from Australia, Hong Kong and Norway. However this list is disappointingly short (just 12 cases) and a reading of the cases shows an underwhelming lack of support from judges. Continue reading

REUTERS | REUTERS/Goran Tomasevic

I recently saw a comment that someone had posted on LinkedIn asking if it was possible for the law just to stay as it is for a while, given the deluge of recent construction case law. I’m sure quite a few of us think that from time to time although, as someone with a regular blog post to write, I don’t want it to go too quiet too often!

Which brings me to one of the latest judgments from Adam Constable QC. It looks like he had a busy September, hearing the dispute in LJH Paving v Meeres Civil Engineering one day, Meadowside Building Developments v 12-18 Hill Street the next day. Plenty has been written about the important points of principle that came out of Meadowside by those involved (for example, see Helena White and Mark Fletcher’s posts), so I’m going to focus on the judgment in LJH Paving. In particular, I’m going to look at the multiple adjudications point (which the keen-eyed might notice wasn’t actually a point raised in the judgment). Continue reading