REUTERS |
October 17, 2016

Court of Appeal says you may be running out of time for interim payments

In Balfour Beatty v Grove Developments, the Court of Appeal has upheld, by a majority of 2-1, the TCC’s first instance decision and concluded that the contractor had no right to receive interim payments after the planned date of practical completion.

The judgment not only addresses a number of interesting points of contractual construction arising out of the parties’ bespoke contract amendments, but also contains a discussion of section 109 of the Construction Act 1996, which will be of more general importance to practitioners. Continue reading →

REUTERS | Nikola Solic
October 12, 2016

Damaging times: a short note on depreciation, inflation and exchange rates

The general rule for compensation is stated in the well-known judgment of Livingstone v The Rawyards Coal Company:

“… where any injury is to be compensated by damages, in settling the sum of money to be given for reparation of damages, you should as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.”

This note considers changes in value that may affect the application of that compensation principle. Continue reading →

REUTERS | Dominic Ebenbichler
October 11, 2016

Contractual issue under PFI contract adjudicated then “appealed” to TCC

It’s funny how things go. It was only a few weeks ago that I wrote about the dispute resolution procedure that CEDR publishes designed for “PFI and long-term contracts”. Now, we have a court judgment looking at an adjudicator’s decision arising out of a PFI contract for the roads and streets lighting network in Birmingham. Given HHJ Mark Raeside QC’s judgment in Amey Birmingham Highways Ltd v Birmingham City Council prints to over 100 pages, I wonder how many of you are familiar with it? Continue reading →

REUTERS | Ilya Naymushin
October 7, 2016

Going nuclear: Britain’s big bet on Hinkley Point

On 29 September 2016, at a private low-key ceremony in London, representatives from three of the world’s most powerful nations (France, China and the UK) met in order to sign a historic energy agreement. The goal: to build Britain’s first nuclear power plant in a generation. When completed in 2025 (if all goes to plan), Hinkley Point C will join two existing Somerset plants (Hinkley Points A and B) with a view to single-handedly supplying 7% of the UK’s energy needs. By that time, almost all of the eight currently-operating nuclear power stations (which together supply 20% of present-day demand) will be either closed or slated for decommissioning. Continue reading →

REUTERS | Robert Galbraith
October 5, 2016

The latest word on serial adjudication

In a decision handed down earlier this week, Fraser J has held that Herefordshire District Council (HDC) is entitled to have Mr Matt Molloy’s adjudication decision, in the sum of £10 million, enforced. The judge did not accept the contractor, Amey Wye Valley Ltd’s, submissions that Mr Molloy’s decision was inconsistent with Mr Mark Entwistle’s earlier adjudication decision. Continue reading →

REUTERS | Dani Cardona
October 5, 2016

Professional negligence claims: a change of direction?

In O’Hare and another v Coutts & Co, the High Court moved away from the “Bolam” test for professional negligence claims (by reference to what a responsible body of professionals would do), at least in respect of financial advisers alerting their clients to investment risks. Does this suggest a change is coming in assessing negligence claims against construction professionals? I don’t think so, but I wonder if recent TCC decisions should cause us to reflect more on the use and quality of expert evidence. Continue reading →

REUTERS | Charles Platiau
October 4, 2016

“Adjudication is not the Wild West of dispute resolution”

For the keen-eyed among you, you will recognise where I have borrowed this week’s title from. For those who are none the wiser, it comes from Fraser J’s judgment in Beumer Group UK Ltd v Vinci Construction UK Ltd  (at paragraph 22). He wasn’t referring to the “wicky wicky wild wild wild west” immortalised by Will Smith, but rather to adjudication being a “formal dispute resolution forum with certain basic requirements of fairness”. Those basic requirements of fairness arise from the rules of natural justice and were central to the court’s judgment.

Continue reading →

REUTERS | Kevin Lamarque
September 28, 2016

September 2016 digest: JCT and adjudication

EB White, Charlotte’s Web:

“The crickets sang in the grasses. They sang the song of summer’s ending, a sad monotonous song. ‘Summer is over and gone, over and gone, over and gone. Summer is dying, dying.’ A little maple tree heard the cricket song and turned bright red with anxiety.”

As in 2012, summer has ended on a high note, with British sportsmen and women exceeding all expectations and finishing second on the Paralympics medal table (with 64 golds and a total of 147 medals). Continue reading →

REUTERS | Eric Gaillard
September 28, 2016

The contract administrator’s discretion in relation to variations

The contract administrator has two distinct roles in relation to variations under most construction contracts:

  • Responsibility for issuing variation instructions on the employer’s behalf.
  • Undertaking the necessary valuation and determining how much money the contractor is due.

The contract administrator’s decisions made under both roles can prove contentious. But how much discretion does it have in undertaking those roles and to what degree can its decisions be challenged? Continue reading →