REUTERS |
July 13, 2015

Are you trading with consumers? Complying with the new ADR Regulations (part 1)

On 1 October 2015, new far reaching regulations come into force that (subject to limited exceptions) will affect all businesses in the UK which sell goods, services or digital content to consumers. This will include many traders in the construction industry.

The regulations are contained in the Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015, as amended by the Alternative Dispute Resolution for Consumer Disputes (Amendment) Regulations 2015 (which I will collectively call the Regulations).

This post looks at a number of issues, including who needs to comply with the Regulations, what traders (and consumers) need to do and the type of ADR envisaged by the Regulations. Continue reading →

REUTERS | Tiksa Negeri
July 8, 2015

Is there ever a duty to instruct a variation?

The previous post in this series on variations considered whether a contractor could be entitled to payment for implementing a change in the absence of a formal instruction. It discussed the fact that an employer may grant the contractor permission to alter the works and that this permission may open up a right to payment despite the lack of a formal order. For example, the employer’s communication may represent an agreement to pay for additional works under a collateral contract or a waiver of the normal requirement for a formal instruction as a pre-requisite to payment.

However, the employer may not give such permission and may point blank refuse to alter the scope. Where does this leave the contractor in a claim for payment for the changed works? Can the employer ever be under a positive duty to vary the scope and, if so, can this be relied upon by the contractor to trigger payment? Continue reading →

REUTERS | Srdjan Zivulovic
July 7, 2015

Suggestion that email and financial documents are application for payment “defies common sense”

I don’t know about you, but I have rather missed Coulson J’s adjudication judgments over the last few years as he has been hearing cases out and about, but not so often in the TCC. I don’t really think I noticed that he’d gone, until he came back following Ramsey J’s retirement. A coincidence perhaps, but surely construction disputes will be better for it!

His way of plain speaking and his ability to cut to the chase have never been more apparent than in Caledonian Modular Ltd v Mar City Developments Ltd, a case all about interim applications for payment. I think it is a must-read for anyone involved in administering a construction contract and offers a cautionary tale for all. Continue reading →

REUTERS | Kim Kyung-Hoon
July 1, 2015

The impact of new technology on construction disputes

What did I do before I downloaded my Uber app? I can’t imagine life without it. The latest wave of technology is revolutionising the way construction and engineering projects are managed, and very soon we won’t be able to remember how we lived without it.

The importance of keeping site records

The current problem is that site records are often kept sporadically, if they are kept at all.  New technology, including apps that are downloaded onto the user’s mobile phone, is making record keeping more user-friendly, which in turn makes it more likely that all those involved in the project will use it. The end result should be an increase in the amount and standard of record keeping. Continue reading →

REUTERS | Corbis
July 1, 2015

January to June 2015, a half year case review

Lord Denning, Parker v Parker:

“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

The first half of 2015 has seen a number of important decisions affecting construction and engineering practitioners. Continue reading →

REUTERS | Navesh Chitrakar
June 30, 2015

June 2015 digest: Aspect v Higgins and an electronic filing pilot

Geoffrey Boycott, on the best way to play Shane Warne:

“My tactic would be to take a quick single and observe him from the other end.”

We haven’t had a sporting reference for quite some time in the monthly digest, but the Ashes are almost upon us. With England having won the one-day series against New Zealand and Andy Murray victorious at Queen’s, it seems apt to mention these achievements, lest it is a long summer against Australia, even without Shane Warne in the bowling line-up (after all, they do have Mitchell Johnson, Shane Watson et al).

For those who have been distracted by sport, during June we saw a number of interesting judgments, not least the Supreme Court’s judgment in Aspect v Higgins. As the first Supreme Court decision on adjudication, the judgment has attracted considerable attention. Isabel Hitching explained the case and its implications and Alastair Walls discussed issues from a practitioner’s perspective. Continue reading →

REUTERS | Tobias Schwarz
June 30, 2015

Mind the CAP, TfL’s conflict avoidance panel

The people of London and the UK should be proud of the London Underground, and there is absolutely no doubt in my mind that without it, London would not be the international powerhouse it is today. Imagine if all of the journeys made by tube each day were made by bus and car? Chaos would ensue.

The tube is now 150 years old and stations have been upgraded due to their age and wear and tear, as well as to accommodate other developments in London. Currently, many of the stations that are at interchanges with Crossrail are undergoing redevelopment. For example, Bond Street is currently in the midst of a £300 million upgrade in order to cope with the expected increase of 70,000 passengers per day.

Given the scope and complexity of projects such as Bond Street, TfL and its contractors are realistic enough to know that there is the potential for disputes. While adjudication is obviously available to them, the need was identified for something more flexible and less adversarial, in order that disputes could be “nipped in the bud” at an early stage. TfL and its contractors have therefore worked with RICS and together they have developed a Conflict Avoidance Panel (CAP). I am on the list of available CAP members, so thought I would try and answer some FAQs. Continue reading →

REUTERS | Jumana El Heloueh
June 29, 2015

BIM in the Middle East – resolving inconsistencies and managing the project lifecycle

In this blog we consider building information modelling (BIM) in the Middle East and some of the key issues you should be aware of as the use of BIM becomes more prevalent in the region.

BIM is being used with increasing frequency on some of the major infrastructure projects in the Middle East. For those unfamiliar with it, BIM is the digital representation of a project from concept design through to construction and operation.  Continue reading →

REUTERS | Yves Herman
June 24, 2015

Enforceability of dispute adjudication board’s decision in FIDIC Contracts

There have now been four court judgments in Singapore relating to the enforceability of a dispute adjudication board’s (DAB) decision under the FIDIC Red Book form of contract.

The latest judgment is PT Perusahaan Gas Negara (Persero) TBK v CRW Joint Operation, which was handed down on 27 May 2015, and is discussed in greater detail here. It now appears that the way should be clear for the contractor to enforce the DAB’s decision, but it has taken it nearly seven years to reach this point.

What lessons can be drawn from this saga? Continue reading →