REUTERS | Amr Abdallah Dalsh
July 4, 2017

The ostrich approach to dealing with adjudication

When I was reading Stuart-Smith J’s judgment in Lobo v Corich, I started thinking about the different types of party that come to adjudication, or get embroiled in the process as a responding party. As you might imagine, not everybody takes part enthusiastically. In fact, some could be said to be extremely reluctant.

As Lobo v Corich demonstrates, attempting to bury your head in the sand is not a sound tactic. (Apparently it wouldn’t be very good for an ostrich either, as it wouldn’t be able to breathe!) Continue reading →

REUTERS | Herwig Prammer
June 30, 2017

June 2017 digest: Brexit, May, NEC4 and JCT (again)

Lord Denning in Packer v Packer [1953] 2 All ER 127:

“What is the argument of the other side? Only this, that no case has been found in which it has been done before… [but] [i]f we never do anything which has not been done before, we shall never get anywhere.”

Lord Denning may have said this in the context of a family law case, but it could be said to apply equally to what the country now faces in its negotiations with Europe, which we now know will be taken forward by Theresa May’s government. The new legislative programme was set out in the Queen’s speech, although it didn’t contain much for construction lawyers (and was only just passed without amendment). Continue reading →

REUTERS | Ivan Alvarado
June 30, 2017

Issues highlighted by GB Building Ltd v SFS Fire Services Ltd

Practical completion is a key concept in any construction project. It has a significant impact on a party’s rights and obligations, and represents a major milestone in the overall project timetable. Under the majority of construction projects, it marks the point at which the clock starts running for the overall transfer of risk from the contractor to the owner.

Despite that, practical completion can, at times, be a difficult and uncertain concept, as the parties discovered in GB Building Solutions Ltd v SFS Fire Services Ltd (t/a Central Fire Protection). The case provides a timely reminder of the confusion that can arise in relation to practical completion and the significant disputes that can hinge upon its timing. Continue reading →

REUTERS | Thomas Peter
June 28, 2017

Exclusion clauses in commercial contracts: the contract is king

It is quite difficult to explain to a non-lawyer why the decision in Persimmon Homes Ltd and others v Ove Arup & Partners Ltd is important. After all, didn’t the Court of Appeal simply decide that the exclusion clause in question means what it says? But to lawyers, who read exclusion clauses through a prism of past case law and long-standing rules of interpretation, the decision is interesting. It reinforces the court’s recent willingness to champion “business common sense” and to uphold contractual terms agreed between commercial parties of equal bargaining strength. This trend should make the English courts a more business-friendly place to litigate. Continue reading →

REUTERS | Darren Whiteside
June 27, 2017

The dangers of not paying the arbitral tribunal’s fees

It’s been a while since I’ve blogged about arbitration, but that’s certainly not because there are a shortage of arbitrations, either domestically or internationally. Indeed, on a couple of occasions this year I’ve had more active appointments as arbitrator than adjudicator.

It was therefore with interest that I read O’Farrell J’s judgment in Ian Rollitt (t/a CD Consult) v Christopher Ballard, which concerned an application to extend time to appeal against an arbitration award dated 12 May 2016, and to appeal against that award on a point of law. It also concerned permission to amend a claim form concerning a challenge to the arbitrator’s later costs award on the grounds of a serious irregularity. However, I want to concentrate on the appeal against the first award. Continue reading →

REUTERS | Mark Blinch
June 20, 2017

Adjudication and payment (under the Construction Act 1996) go to Canada

If you think of Canada, what do you think about? Maple syrup, ice hockey, skiing, Whistler, Bryan Adams, Celine Dion, Justin Beiber?

It probably depends on your age as much as anything. However, what you are unlikely to think about is the Latham Report from 1994. It is unsurprising really, since the two are unrelated.

I mention this because I had a chat with a chap from Ontario the other week. You may think there is nothing unusual in that, after all, London is a multi-cultural city and construction is an industry that attracts professionals from all around the world. However, there was more to it than that. This chap was part of a working party that is carrying out a review of Ontario’s Construction Lien Act. As part of that review, Ontario is considering introducing a prompt payment system and implementing adjudication. Continue reading →

REUTERS | Kim Kyung-Hoon
June 15, 2017

The right extension

There has been some controversy over the decision of the Court of Appeal in Carillion v Emcor in February. The case broke new ground in that it was contended (apparently for the first time) that an extension of time clause could result in a non-contiguous extension of time being granted. This phrase refers to an extension of time for a period which is not adjacent to the then current completion date but rather relates only to a later period. It would therefore leave the contractor (or in this case the sub-contractor) liable for the period of delay between the completion date and the start of the extension period. Continue reading →