REUTERS | Hannibal Hanschke
June 11, 2020

TCC dismisses “no dispute” jurisdictional challenge to adjudicator’s decision

The TCC is continuing to pump out a large number of judgments despite hearings being conducted remotely due to the COVID-19 pandemic and, in May, no less than 13 judgments were published on BAILII.  By my reckoning you have to go back to October 2015 for such a number of judgments in one month. Perhaps remote hearings are working so well (for the judges at least) that we’ll see them continuing even after the lockdown restrictions are eased.

However, it’s a more recent judgment I want to focus on this week, namely the very clear and well written judgment by the new Judge in Charge, Mrs Justice O’Farrell DBE, in MW High Tech Projects UK Ltd v Balfour Beatty Kilpatrick Ltd. This was a Part 8 claim commenced by MW seeking a declaration that an adjudicator did not have jurisdiction to due to the dispute in question not having crystallised.

The “no crystallised dispute” jurisdictional challenge is one that I see quite frequently in adjudications, but it’s normally as a bolt-on to another challenge and not one that we often see reported in judgments from the TCC. My view is that this is because it is so difficult to make out a “no crystallised dispute” challenge, and this was one of the reasons the case caught my eye. The other reason is that it concerned new submissions concerning an extension of time, and this adds an interesting twist to the “no crystallised dispute” challenge under JCT contracts. Continue reading →

REUTERS | Russell Cheyne
June 3, 2020

Copyright in construction: some common queries

Questions about intellectual property rights routinely arise during construction contract negotiations and serve as a refreshing reminder that COVID-19 issues are not the sole focus of negotiations at the moment.

Copyright is one type of intellectual property right and is the area where we tend to encounter the most queries. This blog, the first in a series, takes a look at a few of the more common queries we regularly encounter on this topic. Continue reading →

REUTERS | Reuters
June 3, 2020

COVID-19 and variations

A great deal has been written about force majeure and change in law in the context of COVID-19. This blog considers as an alternative whether a contractor can recover time and/ or money as a contract variation, with particular reference to three standard form contracts – FIDIC’s 1999 Yellow Book, NEC4’s Engineering and Construction Contract and JCT Design and Build Contract, 2016 Edition.

We typically think of a variation as being a change to the permanent works and the COVID-19 crisis will have resulted in many instances of this type of change. For example, where a specified product is not available and needs to be replaced with something else – a situation most people in the construction industry are reasonably familiar with. Instead, this blog focuses on changes to the way the works are undertaken and whether this can be said to be a variation, entitling a contractor to additional monies. For example, as a result of changes to site procedures or methods of working.

It is useful to break this topic down into three separate points:

  • The need for an instruction.
  • The type of change that can qualify as a variation under a contract.
  • Whether the change is outside the contractor’s risk.

I will look at each of these points in turn before considering the ramifications of being able to claim compensation for increased costs arising from COVID-19 as a variation.  Continue reading →

REUTERS | Heinz-Peter Bader
May 27, 2020

The LVD MAP and summary adjudication schemes have landed

A few weeks ago I was due to attend an event to mark the launch of the first edition of the CIC’s Low Value Disputes Model Adjudication Procedure (LVD MAP). However, like many other things this year, because of COVID-19, the event was cancelled and moved on-line instead. As a consequence, I think the launch has gone relatively unnoticed, so I thought I might change that with a few words about the new procedure. Continue reading →

REUTERS | Toby Melville
May 20, 2020

Fiduciary duties and group loyalty – A Company v X and others

“The distinguishing obligation of a fiduciary is the obligation of loyalty” (Lord Millet in Bristol and West Building Society v Mothew).

It is well-known that barristers and solicitors owe fiduciary duties to their clients (the core duty being that of loyalty) such that they must not act for a second client if that would put them in conflict with the interests of the first. But what about expert witnesses? And what about multi-national groups of expert witness companies, who offer expertise in a variety of specialisms? Are such companies different to barristers’ chambers whose members routinely act for opposing sides?

The TCC has recently grappled with these issues in A Company v X and others, granting an injunction to restrain a group of expert witness companies from providing both delay and quantum expert services, despite setting up different teams, in different countries and putting in place measures to protect confidentiality.  It is a case of some significance. Continue reading →

REUTERS | Heinz-Peter Bader
May 20, 2020

“Smash and grab” update: can an employer start a “true value” adjudication without first paying the notified sum?

Insofar as “smash and grab” disputes go, Broseley London Ltd v Prime Asset Management Ltd is simple and straightforward. However, the judgment touches upon an issue which is anything but straightforward: can an employer start a “true value” adjudication without first paying the notified sum?

For those who are new to “smash and grab” practice, Jonathan Cope’s blog, Implications of the Court of Appeal’s decision in S&T v Grove Developments and Gideon Scott Holland’s blog, Adjudication matures as it gets the key to the door are a good starting point. Continue reading →

REUTERS | Peter Cziborra
May 19, 2020

Indirect and consequential loss exclusions – is it time for change?

Parties to construction contracts often include clauses in their contracts seeking to exclude claims for indirect and consequential losses, believing that such clauses are likely to prevent claims for financial losses such as lost profits and business interruption. Contracting parties may consider such financial losses to be beyond the ordinarily recoverable losses flowing from a breach (as compared to the actual cost of repairing defects, for example). However, it is unlikely that such exclusion clauses will bar a claim for this type of financial loss.

But is a change forthcoming? The TCC’s recent decision in 2 Entertain Video Ltd v Sony DADC Europe Ltd suggests judicial appetite for a change to the traditional and narrow interpretation of indirect and consequential loss exclusion clauses. Although the court’s decision accorded with the traditional interpretation, O’Farrell J considered that indirect and consequential loss exclusion clauses should be given their natural and ordinary interpretation while considering the contract as a whole and any relevant factual matrix. Continue reading →

REUTERS | Max Rossi
May 13, 2020

TCC decides adjudicator did not stray off course

I very much welcome the fact that the TCC has clearly been open for business as usual during the COVID-19 lockdown, and that we’ve seen a number of interesting judgments published, one of which is Flexidig Ltd v M&M Contractors (Europe) Ltd.

This was a case about the enforcement of an adjudicator’s decision (as so many are) and involved many of the usual arguments (as so many do), such as did the adjudicator have jurisdiction to reach the decision and was there a breach of the rules of natural justice? Unusually, the judge also had to consider an application to serve proceedings out of the jurisdiction, something I’m not really familiar with but, luckily, Helena White has already talked about that in her blog. That means I don’t need to mention whether enforcement proceedings should have been started in England or Northern Ireland, and leaves me to look at the jurisdiction and natural justice issues in more detail. Continue reading →

REUTERS | Gleb Garanich
May 6, 2020

Build UK guidance on implementing its recommendation on contract terms: one step forward, two steps back

Last year Build UK (BUK) published its non-binding recommendations on the contract terms its members should (as a minimum) refrain from using. The recommendation had the commendable aim of forming “a new common ground between clients and the supply chain on contractual practice in the construction sector” with the key objectives being “to promote collaboration, encourage a fairer allocation of risk through the supply chain, and deliver better project outcomes”. In my May 2019 blog, Build UK’s recommendation on contract terms: a step in the right direction, I considered each of BUK’s recommendations in the context of then current market practice and concluded that, while there were a few areas that required further clarification, there was little with which I strongly disagreed.

Fast forward 12 months and BUK has published detailed guidance on its recommendations and their implementation, which puts helpful flesh on the bones. In this blog I look at that guidance and conclude that, despite my initial optimism, a number of BUK’s recommendations actually do represent material departures from current market practice that clients may struggle to get on board with. Continue reading →

REUTERS | Leonhard Foeger
May 5, 2020

Drones in construction – designing for urban air mobility

The use of unmanned aerial vehicles (UAVs) or drones, as they are more commonly known, as data collection platforms to service a diverse range of civilian and commercial uses is an area that has grown rapidly in recent years. This has been aided by a decrease in the cost and an increase in the reliability of the technology. It continues to be an area of extensive research and development.

In the current time of restrictions on site activities and methods of working, the use of drones for inspection is likely to increase. While data collection is a common and continuing use of drones in the construction industry, their potential goes much further. Continue reading →