REUTERS | Thomas Peter
October 16, 2015

Estoppel by convention: a shield or a sword?

Earlier this year, Akenhead J handed down judgment in Mears Ltd v Shoreline Housing Partnership Ltd, the last in a trilogy of cases of the same name dealing with, among other things, the nature and scope of estoppel by convention.

The case makes essential reading for the construction practitioner, not least because of its discussion of the familiar, but thorny, principle that an estoppel by convention cannot found an independent cause of action. In other words, it is to be used “as a shield and not as a sword”. Continue reading →

REUTERS | Yves Herman
October 14, 2015

Litigating with a kilt on

Last time we looked at the key differences between English and Scots law when dealing with a contract that is subject to Scots Law.

This time we turn our attention to advising on a dispute that is governed by the Scottish courts. You won’t find many court practitioners or advocates wearing a kilt in the Scottish courts (not least because it is far too cold for that most of the time!), but you may well be bamboozled by the different terminology and rules.

Let’s demystify some of them.

Continue reading →

REUTERS | John Javellana
October 13, 2015

When property developments go wrong

Last year, I wrote about Bank of Ireland v Faithful & Gould which, to the best of my knowledge, was the first time the TCC had considered the role of a project monitoring surveyor (PMS). That case did rather turn on its facts though, and most of us probably learnt more about vesting certificates, than the role of the PMS.

However, fear not, because Edwards-Stuart J has produced a monster judgment in Lloyds Bank v McBains Cooper, which has some real gems when it comes to what surveyors should, and most definitely shouldn’t, do when acting as a PMS. Continue reading →

REUTERS | Mark Blinch
October 6, 2015

Adjudicator’s discretion to decide parties’ dispute just got wider

Not that long ago, I suggested it was great to see Coulson J back giving robust TCC judgments. Therefore, it came as no surprise to see what he had to say in Wycombe Demolition v Topevent. Some of his words are worthy of repeating at the outset. In fact, it is arguable that I should let his words do the talking and say no more:

“An adjudicator has to do his best with the material with which he is provided. He has considerable latitude to reach his own conclusions based on that material, and he is certainly not bound to accept either one or other of the figures advanced by the parties. In my view, this latitude will inevitably be even wider now that the original constraint provided by the 1996 Act, that there had to be a written contract between the parties, has been removed by amendment. As happened here, an adjudicator’s conclusion about the nature and terms of the contract could affect his approach to valuation issues.”

However, you may feel short-changed if I don’t add something to this quotation. While the paragraph raises a number of points, first, I’d better mention a bit about the case. Continue reading →

REUTERS | Jorge Silva
October 6, 2015

CDM 2015: taming the beast

The six month transition period for CDM 2015 ends today, 6 October 2015. Since 6 April, transitional provisions have been in place to allow ongoing projects time to adapt to the new regime.  Now that time is up and CDM 2015 is for real.

For the last few months, we’ve been scrutinising the detail of the new regime to understand how it will operate from 6 October. I thought it was time to take a step back from the minutiae and revisit the key changes that CDM 2015 introduced and how they are working in practice. Continue reading →

REUTERS | Navesh Chitrakar
October 2, 2015

How wide a conduit is the DIFC Court for ratification and enforcement of awards?

DNB Bank ASA v Gulf Eyadah Corporation and another has provided further clarity on the recognition and ratification of foreign awards and has, for now, drawn a line between the recognition and enforcement of arbitral awards and the recognition and enforcement of foreign judgments in the DIFC court. Continue reading →

REUTERS | Toby Melville
September 30, 2015

September 2015 digest: prelude to autumn

John Keats, Complete Poems and Selected letters:

“Season of mists and mellow fruitfulness, close bosom-friend of the maturing sun.”

One of the coldest summers for several years has ended. Less an Indian summer (which is described as a “period of unseasonably warm, dry weather that sometimes occurs in autumn in the Northern Hemisphere”), more a cool, damp prelude to the remaining autumn and winter months to come (although September itself ended on a bright and sunny note).

September also felt a bit like a damp squib, so little seemed to be happening in the construction world. For us, it seemed to be all about comment and little else, although we did have the first reported adjudication enforcement cases since July. First, Stuart-Smith J looked at oral construction contracts and substantial performance (and Matt Molloy commented on the case’s impact for adjudicators). Then Coulson J considered natural justice and oral contracts. Matt also commented on when it is appropriate for the court to allow a party to rely on expert evidence.  Continue reading →

REUTERS |
September 30, 2015

The current status of the complex structure theory

Nearly a quarter of a century has passed since Lord Bridge’s discussion of the complex structure theory in Murphy v Brentwood. One might have reasonably expected that in the years that have passed, the position of the complex structure theory in English tort law would have finally been settled upon. However, this has not been the case and uncertainty still remains as to the applicability and scope of the complex structure theory in English law. Continue reading →

REUTERS | Ina Fassbender
September 29, 2015

What to reasonably expect from your adjudicator’s decision (part 2)

Formulating the issues

Someone recently asked me who chooses the photographs for our blog, and I explained that it was the good people at Practical Law. It’s quite a tough task to find photographs that relate to the subjects we blog about, so this week I’d pondered suggesting a photograph of a West Highland Terrier.

Let me explain. I wrote this post sitting in my study dog-sitting a friend’s West Highland Terrier, Otis. I was sad to see the little guy go, so I thought a photograph would be a fitting reminder. Also, I was once told that mentioning ones pets in blogs encourages people to read them (I’ve no idea why!). However, I thought I’d let the blog speak for itself rather than try and entice you with a photograph of a dog.

Anyway, as usual I’m digressing.

In part 1 of this blog I looked at how an adjudicator should go about producing a good looking and professional decision. In part 2, I consider a skill that is critical for any adjudicator to possess: the ability to formulate the issues. Continue reading →