Aspect v Higgins is the first case relating to adjudication or the Scheme for Construction Contracts 1998 to reach the Supreme Court. Indeed, so far as I am aware, it is the first case to reach the highest court since the House of Lords decided Melville Dundas v Wimpey in 2007. Accordingly, adjudication practitioners have been eagerly awaiting the decision, which was issued on 17 June 2015. Continue reading
It has been a while since I’ve looked at issues relating to bias and judicial recusal. This is partly because, until recently, we had lots of adjudication-related things to write about (although Jonathan does seem to have put the kibosh on that one). However, it seems these issues are still ripe for consideration in court proceedings, as the three cases that follow testify. Continue reading
The Supreme Court has handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, determining by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment.
The issues
In most cases a dispute is referred to adjudication well within the limitation period. Adjudication is designed to aid cash-flow and a party seeking payment rarely waits until the end of the limitation period to commence an adjudication. Nor does a paying party usually wait many years to recover a payment that it has made following an adjudication. However:
In the current overheated commercial property market, we are seeing ever more lively debates about who should take the risk of defects in existing structures on refurbishment projects. As landlords look to refurbish properties in order to capitalise on rising rents and owner-occupiers choose to tart up their existing premises rather than pay those rising rents, good contractors are in high demand and can afford to take a much more risk averse approach to this aspect of contract negotiations. Continue reading
Some years ago Tony Bingham wrote about the Society of Construction Law (SCL) in his column in Building Magazine:
“…let me coax you to join the SCL. It’s the best ‘something’ I’ve ever joined. It does nothing, except get folk to give a talk, a paper, express a view, mull over construction law. Yes, there are lots of lawyers but also architects, engineers, surveyors, contractors, developers, arbitrators, adjudicators and mediators. Real people. It’s £100 a year and no exams, no politics, no silly rules, no bullying, no disciplinary tosh, no royal charter to be poked in the eye with. Great.”
I wholeheartedly agree with Tony on this point, and I would urge those of you who are not members to join. The object of the SCL is not an endless trawl of dinners and social events (although there are a few!), it is to further our knowledge of construction law. This object is probably best epitomised by its annual essay competition, the SCL Hudson Prize. Continue reading
It is a long time since I’ve been involved in the administration of a construction contract, but I often get to deal with payment disputes in adjudication where there are issues with how the parties have operated the contractual payment mechanism. It is for that reason that I found Edwards-Stuart J’s judgment in Leeds City Council v Waco UK Ltd interesting. Continue reading
Arbitration is an investment and, like any investment, one must assess the risks against the benefits. Such an evaluation often focuses upon the merits of the legal and commercial issues in dispute.
A recent case heard by the Court of Appeal in Dubai (Case No. 371-203) provides a reminder that on top of the over-arching merits of a claim, parties to an arbitration have to put procedural requirements and the form of the arbitration at the top of their list of priorities to ensure that their investment is not squandered by subsequent ratification and enforcement issues. Continue reading
Two new cases on penalties have revived two old concerns. Do the courts interfere too much with the validity and operation of liquidated damages clauses? And if they do, is it always the employer that suffers? Continue reading
While the judgment in ISG Retail Ltd v Castletech Construction Ltd is not particularly long, it is interesting case because it concerns some juicy facts and arguments that we don’t often see in adjudication enforcement cases, such as an advance payment, allegations of a total failure of consideration and a claim for restitution.
Douglas Adams, The Restaurant at the End of the Universe:
“…one of the many major problems with governing people is that of whom you get to do it; or rather of who manages to get people to let them do it to them… anyone who is capable of getting themselves made President should on no account be allowed to do the job.”
The first majority Conservative government since 1992 was elected this month. Since then, we’ve heard the Queen’s Speech (which sets out the legislative programme for the 2015-16 Parliamentary session) and know the second budget of the year will be on 8 July 2015. While many of the bills in the Queen’s Speech may have come as no surprise, we covered the construction, property, planning and environmental aspects. Continue reading