REUTERS | Yves Herman
April 29, 2020

What has lockdown taught me so far?

It is day 38 of lockdown and a month since I last blogged. Although it is arguable that not a lot has happened in that time (after all, the COVID-19 lockdown continues and our freedom is still curtailed), I wonder if we are at the beginning of a permanent shift in the way people work.

A month ago I talked about how we were all getting used to being at home all the time, and outlined how I hoped people would act reasonably and be prepared to be flexible. On the whole, I think that has been the case (and I’m not going to name and shame anyone who I think hasn’t been reasonable in an adjudication before me!). Jefford J’s judgment in MillChris Developments Ltd v Waters has been useful in this regard (she refused to grant an injunction to prevent an adjudication from continuing, rejecting arguments that the lockdown was sufficient reason to postpone the adjudication until after the lockdown ended), as James Frampton explained. I’ve used it to “herd” the parties to agree a sensible timetable/compromise on a number of occasions.

I also discussed meetings and site visits, and thought I’d pick up on these two points today. Continue reading →

REUTERS | Ricardo Moraes
April 22, 2020

From Bresco to Meadowside and Astec: from incompatible and futile to exceptional and permitted

In the recently published decision of Balfour Beatty Civil Engineering Ltd v Astec Projects Ltd (In Liquidation), a company in liquidation (Astec) was permitted to proceed with three adjudications on the basis that it satisfied conditions intended to bring the case within the exception established in Meadowside Building Developments v 12-18 Hill Street Management Company to the general rule in Bresco v Lonsdale.

In the pre-Coronavirus age, I wrote a blog post about issues that arose in Meadowside due to the nature of the third party funding in that litigation. Six months on, and in advance of the Supreme Court reaching a decision in the Bresco appeal, I consider the development of this line of authorities dealing with the third party funding of liquidation adjudications. Continue reading →

REUTERS | Alexander Kuznetsov
April 22, 2020

Electronic execution: another “new normal”?

Electronic signatures and virtual signings (using the Law Society guidance following the “Mercury” Tax case) have been gaining popularity for some time with electronic execution given an added boost in Autumn 2019 when the Law Commission published its report on e-signatures.

The report’s key findings were that:

  • Deeds and documents can be signed electronically so long as the signatory intends to authenticate the document and any relevant formalities are satisfied.
  • It is possible to witness an electronic signature, but the witness must be physically present.
  • Electronic signatures are capable of satisfying a statutory requirement for a signature.

Historically in the construction industry, uptake of electronic execution has been slow. Parties have generally preferred to opt for the familiar security of a “wet ink” signature. Virtual or electronic execution methods were typically reserved for special occasions, such as when signatories were based abroad and time did not allow for hard copies to be circulated.

The COVID-19 lockdown has, of course, changed a great deal. However, certain things have not changed and one of these is that construction contracts still need to be executed. In the last month, we have seen electronic and virtual execution fast become the new normal for concluding contracts. With this in mind, I thought it might be interesting to explore some of the more common queries that we’ve been encountering. Continue reading →

REUTERS | Shamil Zhumatov
April 21, 2020

Expert witnesses – what is the scope of their duty?

In a case that might cause alarm to firms providing expert witness services, the Technology and Construction Court (TCC) issued a judgment this month finding that experts may owe a fiduciary duty to their clients preventing their firms acting for other parties in related proceedings.

In A Company v (1) X, (2) Y, (3) Z, O’Farrell J granted an injunction to prevent an expert witness from acting for a party in arbitration proceedings in circumstances where a colleague from the same global consultancy firm was already acting for the other party in separate arbitration proceedings. Continue reading →

REUTERS | Amr Abdallah Dalsh
April 15, 2020

Fraud allegations in adjudication enforcement prevent summary judgment

A couple of weeks ago when Matt was writing about the difficulties parties face in adjudicating because of the 2019 novel coronavirus disease (COVID-19), we were just starting week two of the coronavirus lockdown, and still getting used to working from home every day. Two weeks later, I’m sure we are all a bit more in the swing of things remote working wise, but having to juggle work and the joys of home schooling is adding an extra challenge for many.

At the moment there may be no end to the lockdown in sight but there are still judgments to write about and so that is what I’m going to do. This week, I’m looking at Coulson LJ’s judgment in PBS Energo AS v Bester Generacion UK Ltd.

Continue reading →

REUTERS | Gleb Garanich
April 15, 2020

Coronavirus, adjudication and injunctions

Coronavirus, or COVID-19, is impacting all parts of our lives. Currently, the focus in the construction industry is rightly on the safety of workers still attending sites. No doubt, the future will see litigation on whether the coronavirus gives rise to extensions of time, force majeure, frustration or other legal rights or remedies.

At present, the main impact on the litigation of construction disputes is that, as Matt Molloy explained in his recent blog, it is being carried out “in the shadow of coronavirus“, rather than dealing substantively with what coronavirus means under a particular contract.

A search of Lawtel reveals there are already 15 High Court judgments referring to coronavirus. These include civil litigation procedural issues, such as the refusal of an application to adjourn a five-week trial in a £250 million claim in the Insolvency and Companies List of the B&PCs, due to start in June 2020. Continue reading →

REUTERS | Rodrigo Garrido
April 7, 2020

Construction Act consultation – summary of responses

It may understandably not be at the forefront of people’s minds as the industry responds and reacts to the COVID-19 pandemic, but in February 2020 the government finally published a summary of responses to its Construction Act 1996 consultation. Matt Molloy has previously blogged on the responses from an adjudication-perspective so I thought it would be interesting to have a look at the responses to some of the other questions.

One point to be aware of when reading the summary is that the government only received 54 responses to the consultation. Of these respondents, the majority appear to come from a contractor/sub-contractor or dispute resolution professional background rather than developers or funders, which perhaps explains some of the more (at least from my perspective as someone who acts primarily for those parties) contractor-focused responses. Continue reading →

REUTERS | Navesh Chitrakar
April 3, 2020

Mediation update: can parties mediate by telephone?

Faced with the 2019 novel coronavirus disease (COVID-19), everyone’s primary focus in these extraordinary times, is doing all they can to protect everyone’s health. At the same time, many are being forced to wonder about business continuation and ways that they can quickly collect aged debts or de-risk by settling disputes.

Some are turning to mediation to achieve their current urgent needs, particularly as mediation is a flexible process that can be organised and take place within days and, if a settlement is reached, deliver a fast and final result.

However, recognising that most mediations involve people physically meeting, many are asking can parties mediate by telephone?

Here are my thoughts. Continue reading →

REUTERS | Wolfgang Rattay
March 31, 2020

Adjudicating in the shadow of coronavirus

I know I’m not alone in thinking that the last few weeks have been a challenge, both personally and professionally. In a little over three months the whole world has been turned upside down and all because of the 2019 novel coronavirus disease (COVID-19).

Here in the UK, we are just starting week two of the coronavirus lockdown and most of us are still getting used to working from home every day. However, some folks don’t have that option and are still heading out to work each day, whether because they are key workers or because they can’t do their job anywhere else (like supermarket and construction workers), whereas others are stuck at home with nothing to do as they are part of the economy that is closed. Whatever our plans for 2020, they’ve all gone out of the window, at least for now.

I don’t know about you, but I never realised just how much working at home occasionally, the odd day here and there, differs from being here every day. Being away from co-workers is strange, not having the travel and routine of leaving the house is odd. It’s a tough time for everyone but, as the saying goes, the show must go on. In my case, that is working out how to keep adjudicating (and arbitrating) remotely. I haven’t been asked to mediate remotely yet, although that may only be a matter of time. Continue reading →