In my previous two posts I provided an introduction to the Party Wall etc. Act 1996 (PWA 1996) and a brief outline on the agreement of a party wall award where a dispute arises.
In this third post I address some of the more complex aspects of the PWA 1996, including access rights, costs, expenses and special foundations. Continue reading
As some of you may well have seen, the second edition of the Construction Industry Council’s Users’ Guide to Adjudication has now been published, and not before time. The first edition was published in 2003, when most of us were still using the original Nokia 3310. I have said a couple of times in past blogs that an update was well overdue (perhaps the esteemed members of the CIC read my blogs?). This was particularly the case given that the first edition was based on the un-amended Construction Act 1996, and consequently stated that the provisions of the Act only applied to construction contracts in writing. Continue reading
At least that was the view of Fraser J in his concluding remarks at Adrian Williamson QC‘s SCL talk earlier this week (and, yes, I did warn Peter that I was going to quote him). Adrian was discussing payment under the Construction Act 1996 and was highlighting where we currently are, when it comes to payment and pay less notices.
After a quick canter through the provisions of the Construction Act 1996, as originally drafted, and the amendments that came into force in 2011, Adrian turned his attention to the case law. He choose to start with ISG Construction Ltd v Seevic College, and then highlight a number of cases that he considered have made inroads into the principles that Edwards-Stuart J established in ISG.
Please note that much of what follows should not be directly attributed to Adrian. His talk was not recorded and I simply can’t write that fast! I have “borrowed” his idea and structure (and a few of his comments), and elaborated on them with some of my own. Continue reading
Commercial and construction contracts can be complex and fairly voluminous and the documents forming the contract can often run to a number of files, or more. During the tendering process, various documents often pass backwards and forwards between the negotiating parties and it is very common for multiple versions of the same document to be shared. The upshot of this is that by the time the parties have reached an enforceable agreement, some hundreds of emails will have passed and people within the various party organisations will have read and commented on many drafts of different documents. Then, when everything has been agreed and formalised, it will often be the responsibility of a person or a small team within each organisation to finalise the contract documentation. It is here, at this stage, that the scope for human error is potentially huge. It is quite easy to see how someone might include the wrong (or wrong version of) documents within the finalised contract and how such an error might go unnoticed for some time. Indeed, in Milton Keynes v Viridor (Community Recycling MK) Ltd, Coulson J remarked that such an error:
“… is perhaps a sad reflection of the fact that modern day contracts of this kind are so complicated that nobody… bothers to check the actual documentation being signed.”
Where such an error creeps in, what options are available to the parties?
In reaching his judgment in Milton Keynes v Viridor, Coulson J helpfully set out and summarised the principles applicable to the law on rectification. Continue reading
Choose life. Choose a job. Choose a career. Choose a £128 million hydroelectric scheme in the Scottish highlands, with a five mile tunnel running through the Conagleann Fault Zone, drilled by an enormous machine the locals affectionately nick-named “Eliza Jane”. Choose NEC ECC, Option A, design and build. Choose a tunnel collapse eight months after take over. Choose a dispute over whether the collapse was an employer’s risk event and whether the contractor exercised reasonable care and skill in preparing its design. Choose £130 million of remedial works. Choose the Court of Session, Outer House. Choose concurrent expert evidence, 73,000 documents, and the absence of a key factual witness. Choose life. Continue reading
It was just over a year ago that we were all reading about the Commercial Court’s decision in Cofely v Bingham to remove an arbitrator under section 24 of the Arbitration Act 1996, finding that there were grounds that raised the real possibility of apparent bias.
Fast forward to 2017 and, once again, arbitrator removal has been before the Commercial Court (in H v L and others). This time, we don’t know who the parties or the arbitrator are, just that the court decided that there were no circumstances that gave rise to “any justifiable doubts as to [the arbitrator’s] impartiality”.
Not only does the judgment provide a helpful summary of the principles of acting fairly and impartially, I also thought that it was interesting to see the court relying on adjudication enforcement judgments as part of its reasoning.
Mitch Hedburg:
“My fake plants died because I did not pretend to water them.”
February has been a grey, wet month this year, with few high points, although we are sure that everyone is intrigued by the stories coming from across the Atlantic. Donald Trump may have only been the 45th President of the United States for a month, but already we have seen an immigration ban (with another one coming), a falling out with the intelligence services, the resignation of his national security advisor, more on that Mexican border wall, an administration likened to Nixon and Watergate and repeated examples of his conflict with the media.
However, we can assure you that we are not “dishonest” and there is no “fake news” here… Continue reading
It is hard to believe that the CIC Consultants’ Contract was published nearly 10 years ago. Having been involved in its gestation, I am only too keenly aware of the compromises that were needed to create a form that was acceptable to the CIC’s constituent bodies, while also (mainly) meeting the needs of commercial developers and the institutional funding market.
It is clear from Dwight Patten’s blog that the ACE faced similar challenges in updating its professional services agreement (PSA). It claims to have produced a form that is “balanced” and one that clients “will be pleased with”. But do these claims stack up? And, more importantly, will it allow ACE to shake off its reputation for producing “consultant friendly” appointments? Continue reading
Many of you reading this will no doubt at some point have visited the Rolls Building in London, the home of the Chancery Division, the Admiralty and Commercial Courts, and the TCC. It was opened by the Queen in December 2011, but it would have been open somewhat earlier if the project had not been delayed. The main contractor, Carillion, blamed its sub-contractors (including Emcor) for the delay. In April 2016, Miss Recorder Nerys Jefford QC (as she was then) heard a trial of two preliminary issues. Continue reading
In Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd, the TCC confirmed the armoured quality of an adjudicator’s decision, despite a valiant jurisdictional challenge. The enforcement action was set against a zigzagging tale of assignment and re-assignment… Continue reading