REUTERS | Ilya Naymushin
November 2, 2016

Beware the dangers of uncertainty with letters of intent

Alexander Nissen QC’s recent decision in Spartafield Ltd v Penten Group Ltd brings a degree of finality to the long-running dispute between these two parties. It comes after multiple adjudications and previous proceedings in the TCC. Back in March, my colleague Ebony Alleyne discussed what was then the most recent judgment, dealing with the enforcement of an adjudicator’s decision.

The current case represents a final court determination of the disputes that were originally adjudicated. Adjudication is, by its nature, a temporarily binding dispute resolution procedure. This final determination of the issues provides an example of how the process works in action. Spartafield’s attempt to challenge the adjudicators decision at the enforcement stage had been predictably unsuccessful, but the door was always open to issue fresh proceedings and obtain a final determination. Continue reading →

REUTERS | Guillermo Granja
November 1, 2016

“Payment of any final sum… is based on enforcement of the contractual bargain”

Let me begin with an apology. It may not have escaped your notice that the titles to the majority of our recent posts have been quotes from the cases that we’ve written about, so I was loathed to do so again this week. However, when I read the judgment in Kilker Projects v Rob Purton (t/a Richmond Interiors), this sentence jumped off the page at me, so I couldn’t resist using it.

We can add this case to those that deal with merits based valuations following “smash and grab” adjudications (like ISG v Seevic, Galliford Try v Estura and so on). Continue reading →

REUTERS | Ilya Naymushin
October 31, 2016

October 2016 digest: anniversaries and amendments

Francis Bacon, Advancement of Learning:

“The knowledge of man is as the waters, some descending from above, and some springing from beneath, the one informed by the light of nature, the other inspired by divine revelation.”

Practical Law Construction celebrated its eighth birthday this month. A lot of water has gone under the bridge since we launched in 2008, not least the Construction Act 1996 amendments, which turned five this month. We are also on our third set of JCT amendments. First it was the 2009 revisions, then a whole new suite in 2011 and now it’s the 2016 Editions. That’s three sets of changes that practitioners have had to get to grips with in eight years. (It’s nearly as many managers as England’s football team has had in that time!) Continue reading →

REUTERS | Dominic Ebenbichler
October 28, 2016

Preliminary issues: test and testiness in the TCC

“Preliminary Issues” can be such a useful way of resolving disputes that the TCC Guide specifically deals with them in section 8. Further, there are plenty of TCC cases in which preliminary issues have been ordered. Therefore, there is a good deal of guidance as to the correct test to apply in deciding whether it is sensible to order preliminary issues to be heard.

However, in the midst of all this guidance, it can be helpful to recall some of the issues that can vex the court. Continue reading →

REUTERS | Darren Whiteside
October 25, 2016

“This is a classic case of one party making a bad bargain”

In keeping with Jonathan’s recent theme of using judicial quotes as blog post titles, I thought I’d do the same. This week, I’ve gone for Jackson LJ in the Court of Appeal in Balfour Beatty v Grove Developments. Jackson LJ went on in that paragraph to say:

“The court will not, indeed cannot, use the canons of construction to rescue one party from the consequences of what that party has clearly agreed. There is no ambiguity in the present case which enables the court to reinterpret the parties’ contract in accordance with ‘commercial common sense’…”

Some may question whether the parties has turned their minds to the situation they faced at all and that, if they had, they would be taken to have agreed what the words in the contract said. Continue reading →

REUTERS | Toby Melville
October 24, 2016

Will a new tribunal in Dubai help clarify jurisdiction?

A new judicial tribunal has been set up in Dubai to bridge conflicts arising between the jurisdiction of the local Dubai courts and the Dubai International Financial Centre (DIFC) courts.

The new tribunal has the power to issue binding decisions on which court should hear a particular dispute when there is a conflict between the two. Any underlying proceedings will be put on hold until the tribunal makes a decision.

Where judgments have been handed down by both courts, the tribunal can decide which is to be enforced. Continue reading →

REUTERS | Thomas Peter
October 21, 2016

It was all about construction, construction law that is

Last week, I attended Sweet and Maxwell’s tenth annual construction law conference. As the marketing material says, it was a full day that aimed to:

“…give construction lawyers a better understanding of how to overcome real-world challenges by providing context and insight from in-house speakers working on current major projects.”

Continue reading →

REUTERS | Bobby Yip
October 19, 2016

The changing landscape of construction law in Hong Kong

Hong Kong is a dynamic and innovative city, identifiable by its skyline dominated with densely packed skyscrapers. It is known for its expertise in construction of high-rise buildings and complex projects and is increasingly in demand to export its expertise to overseas markets.

In this blog post I look at the legal developments that are moulding the construction landscape in Hong Kong, and providing continued support to growth in this sector. Continue reading →

REUTERS | Pascal Rossignol
October 18, 2016

“Adjudicators are not expected to be perfect”

My last post considered a Fraser J judgment (Beumer Group v Vinci Construction) and used a line from the judgment as the title. This post does the same, only this time the judgment is Amey Wye Valley Ltd v Hereford DC. No Will Smith reference on this occasion though, just a case about roads and highway maintenance.

Michael Curtis QC and Charles Pimlott (who acted for the council) discussed the case at the time and addressed some of the key issues. It’s arguable that they highlighted why it is sometimes sensible for the same adjudicator to be appointed in serial adjudications (but that’s another story). I want to look at two aspects of the judgment, which I think are the most interesting, mistake and severance.

Continue reading →