REUTERS | Beawiharta
March 31, 2015

What can we learn from Paice v Harding? (other than the points on bias…)

By now many of you will have read the most recent instalment in the battle between Gary Paice and Kim Springall (property developers), and MJ Harding (building contractor). In Paice and another v MJ Harding, Coulson J concluded that a fair-minded observer would consider that there was a real possibility that the adjudicator, Mr Sliwinski, was biased as a result of his failure to disclose conversations with one of the parties, his misleading answers to emails when asked about those conversations and the tone and content of his explanations and witness statements in the associated enforcement proceedings.

Much has already been written about Coulson J’s conclusions and Richard Sage’s blog is thought provoking. However, rather than give you my views on the apparent bias point, I want to look at two other issues:

  • Coulson J’s conclusion that there was a substantial overlap between the adjudication Mr Sliwinski decided and a previous adjudication decided by Mr Linnett, such that Mr Sliwinski did not have jurisdiction.
  • Coulson J’s statement that, “Everyone in the construction industry knows that contractor’s claims are usually overstated”.

Continue reading →

REUTERS | Kim Kyung-Hoon
March 27, 2015

Do you know your limitations? Decennial liability in the UAE

When entering into contracts in the UK, most parties will understand that there are time limits under UK law within which they must bring a claim under the contract. There are also time limits for the bringing and defending of claims under UAE law.

However, parties contracting in the UAE may not be aware that both the type of claim and the time period are rather different to those that apply in the UK jurisdiction. In this blog we consider some of these differences. Continue reading →

REUTERS | Pillar Lee
March 24, 2015

Adjudication “at any time” unless there is a final certificate

Those of us familiar with the JCT standard forms of contract all know that they provide for a final certificate, which becomes conclusive evidence of the matters stated in it, unless it is challenged within 28 days. Equally, those familiar with adjudication know that either party to a construction contract has a right to adjudicate “at any time“.

So, what happens when the principles of “at any time” collide with those concerned with the conclusivity of final certificates?

It seems that Coulson J may have answered this question for us recently in The Trustees of the Marc Gilbard 2009 Settlement Trust v OD Developments and Projects Ltd. Continue reading →

REUTERS | Brian Snyder
March 20, 2015

Adjudicators, their office managers, and natural justice: a cautionary tale

The facts of Paice v MJ Harding are bizarre, and potentially troubling for those involved in adjudications.

In March 2013, Mr Paice and Ms Springall engaged MJ Harding to construct and fit out two residential houses in Surrey. By September 2013, the works had come to a halt and the parties had fallen out. Two adjudications followed in November 2013. Mr Sliwinski was the adjudicator in each and, on both occasions, his decision was in favour of the contractor. So far, so very normal. Continue reading →

REUTERS | Srdjan Zivulovic
March 18, 2015

Variations at the contractor’s risk

In the first post of this series on variations, I looked at the issues that needed to be considered when assessing whether an item was within or outside the scope of works. In particular, the issues that arise when the contractual risk allocation is such that the contractor is responsible for the cost of undertaking work that is additional to the defined scope. For example, where the design put forward by a design and build contractor fails and it has a responsibility to undertake extra works to correct the problem. While such work may be classified as a variation to the originally defined scope, the employer will not expect to pay for it.

This post considers the issues surrounding compensation for such changes. Continue reading →

REUTERS | Nigel Roddis
March 17, 2015

Slip resistance: the importance of correcting slips on time

Slips can be costly, as Steven Gerrard knows only too well. Arguably, his slip in a game against Chelsea last season cost Liverpool the Premier League title. But it’s slips in adjudicator’s decisions that I want to talk about today.

Parties occasionally claim that items they disagree with in an adjudicator’s decision constitute slips when it is abundantly clear that they have not arisen as a result of a “clerical or typographical error arising by accident or omission” (section 108(3A), Construction Act 1996). However, even the most experienced adjudicators sometimes make genuine slips in their decisions, and that is exactly what happened in PP Construction Ltd v Geoffrey Osborne Ltd. Continue reading →

REUTERS | Ivan Alvarado
March 13, 2015

Payment rules reviewed by the back door of adjudication enforcement?

Ever since the payment rules in the Construction Act 1996 were amended, we have been waiting for parties to argue over them and for the TCC to give its guidance on them. Each year in January, we have suggested that this might be the year when that guidance would be forthcoming. Even at the start of this year we were saying the same thing, the only difference being that by the end of 2014, Edwards-Stuart J had handed down two judgments that dealt with a party’s failure to serve a pay less notice (Harding (t/a MJ Harding Contractors) v Paice and another and ISG Construction Ltd v Seevic College). Continue reading →