REUTERS | Toby Melville

At the end of last year, Jonathan discussed the Court of Session’s judgment in D McLaughlin & Sons Ltd v East Ayrshire Council, where Lord Clark looked at the conclusiveness of a final certificate under a Scottish Standard Building Contract with Quantities, 2011 Edition (SSBC, 2011 Edition).

That case has popped up in the law reports again, this time in the Inner House (also called D McLaughlin & Sons Ltd v East Ayrshire Council), where three lords (Carloway, Woolman and Malcolm) have considered the Council’s appeal against Lord Clark’s judgment. In a rare occurrence these days, that judgment split the house. Continue reading

REUTERS | Thomson Reuters Global Creative Services

English law has, to put it mildly, a fractious relationship with the concept of good faith. There is a deep-rooted scepticism towards it that has often manifested as outright hostility: Lord Ackner famously described the duty to negotiate in good faith as “inherently repugnant to the adversarial position of the parties” (Walford v Miles). Indeed, the Supreme Court has recently confirmed that there is no general principle of good faith in English law (Times Travel (UK) Ltd and another v Pakistan International Airlines Corp).

It has been said that good faith is “a topic that has been written about at inordinate length, by an almost intolerably wide group of people – some worth reading, some not.” Despite this foreboding context, it is a prescient time to consider good faith further. Following Yam Seng Pte Ltd v International Trade Corporation Ltd there has been a rapid development of the law on implied obligations of good faith in commercial contracts. After some initial confusion as to the test to be applied when seeking to imply a term of good faith, the Court of Appeal in Candey Ltd v Bosheh and another has now provided some welcome clarity.  Continue reading

REUTERS | Violeta Santos Moura

Less than two years ago, the government published the Construction Playbook, a comprehensive and quite visionary plan for changing the delivery of construction projects in order to “get it right from the start”. If you haven’t looked at it so far, it is worth reading. It sets out what are transformational principles and policies, designed to change how public works projects are procured and managed.

That is a tall order and the Playbook covers a range of areas, from preparation and planning to selection and project delivery. It looks at topics such as commercial pipelines, digital technology, benchmarking and cost models, risk allocation and successful relationships, as well as a whole chapter dedicated to effective contracting. The updated Playbook was published last month, together with a raft of new guidance notes, so now is a good time to remind ourselves what it is all about and what progress has been made since it was first published. Continue reading

REUTERS | Bogdan Cristel

I’ve been looking at the Law Commission’s consultation on proposed changes to the Arbitration Act 1996 (AA 1996). The AA 1996 has been around some 25 years, which is about the same length of time that I’ve been resolving disputes. In fact, the very first case I worked on was a pre-Act arbitration that had started some years before, and rumbled on for several more. Therefore, I don’t really remember life without the AA 1996, just like it is really hard these days to remember life without the Construction Act 1996!

Continue reading

REUTERS | Kham

Recent case law has shown how careful parties need to be when drafting a liquidated damages (LDs) regime. The case of Buckingham Group Contracting Ltd v Peel L&P Investments and Property Ltd provides yet another example of what can happen if there is any ambiguity in the drafting.

This blog takes a closer look at this case. Continue reading

REUTERS | Jorge Silva

Would I lie to you?

This week I’m looking at a case from the Chancery Division of all places, Instrument Product Development Ltd v WD Engineering Solutions Ltd.

Why, I hear you ask? Well, it caught my eye because the judgment starts by talking about a noted 1981 study, Role of schemeta in memory for places (was it just me that had to Google the meaning of “schemata”?) by psychologists William Brewer and James Treyens, and went on:

“The study demonstrates an aspect of the fallibility of memory. We do not store memories as images, like a photo album, to be revisited in detail at a later date. We recreate the image every time we recall it, combining the details of what we do recall with our expectations of what we should recall. The process is automatic, and done without conscious realisation that it is taking place.

That issue is at the heart of this case. In the Brewer and Treyens study, different witnesses had different recollections of the same room that they had seen only seconds before. In this case, two witnesses have critically different recollections of the same telephone conversation held in March 2017 to which they were the only parties.”

It’s certainly not the first time that the courts have considered the reliability (or otherwise) of the memories of witnesses, and we’ve also blogged on the topic before. However, the case provides a useful summary of the relevant principles, and the opportunity to consider those in the context of construction adjudication.  Continue reading

REUTERS | Peter Cziborra

Every so often the TCC produces a judgment that serves as a cautionary tale of how domestic building projects can go wrong and how the resultant litigation can be often be a:

“… financial disaster for one of the parties and, even if not, likely an expensive and ultimately unrewarding result for both.”

Those who have advised on and acted in such claims will be familiar with trying to manage the particular conflicting factors. On the one hand, the (understandable) emotional investment of the parties when dealing with their homes (for the homeowner) or small business/livelihood (for the contractor), makes settlement difficult. On the other hand, the likely cost bill and risk makes proceeding to trial normally best avoided.

Is there an alternative for these claims? Continue reading

REUTERS | Thomas Peter

Two-stage procurement

In a recent survey undertaken as part of the RIBA Construction Contracts and Law Report 2022, it was reported that over a third (37%) of respondents had used two-stage procurement over the last 12 months. We are similarly seeing two-stage procurement being used more and more in the construction industry, particularly for major building projects. In fact, the majority of recent development projects we have advised on in the UK were procured on a two-stage basis.  Continue reading

REUTERS | Eric Vidal

Novation and some alternatives

A common scenario we are asked to advise on is this: a client acquires a building where several consultants have been engaged to carry out services but the building is sold before the services are completed. The client then wants the same consultants to continue to carry out those same services.

Normally when a client acquires a site in this way provision will be made for the appointments to be novated to the new client. But what if those appointments don’t make provision for novation? This blog takes a look at some options. Continue reading

REUTERS |

It’s that time of the month again and we have published episode 14 of our podcast, The Construction Briefing, featuring Michelle Rousell and Yassir Mahmood from the Practical Law Construction editorial team.

If you are interested in listening to their discussion on all things construction (building safety, adjudication enforcement, climate change, building contract surveys and more) before turning to other important issues of the day, like Birkin handbags and mobile phones, then tune in. You may even chuckle at the references to Glanville Williams’ Learning the law!

The Construction Briefing is an alternative way of learning about key developments in construction law, with our editorial team discussing some of the wider issues those developments raise.

You can subscribe wherever you get your podcasts (like Apple PodcastsGoogle Podcasts and Spotify), enabling you to download and listen to all episodes on the go on your phone. Alternatively, you can use our audio and video RSS feed to access the latest edition as soon as it is published.