On numerous occasions the courts have emphatically stressed the need to comply with the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol). Sometimes, however, a claimant is hard up against the expiry of the limitation period and, as the lesser of two evils, has to issue proceedings without complying with it. In such circumstances the claimant needs to steer a careful course. Continue reading
I have recently returned to private practice from a secondment with a major contractor client, which was an excellent experience as it allowed me to see life very much from the client’s point of view and understand, first-hand, many of the issues that clients face on a regular basis.
One issue that came up several times during my secondment was the “back-to-back” principle when drafting sub-contracts. Continue reading
When Lord Dyson’s judgment in PC Harrington Contractors Ltd v Systech International was published in 2012, I suspect there was a big intake of breath in the adjudication world, not just from adjudicators, but also from those involved in advising parties and the parties themselves. In deciding that an adjudicator was not entitled to his fees because his decision was unenforceable due to a breach of the rules of natural justice, the Court of Appeal handed down one of the most significant adjudication judgments. I commented on it at the time, twice.
If you are wondering why I’m mentioning this now, I suggest you take a look at Lord Tyre’s judgment in Stork Technical Services (RBG) Ltd v Marion Howitson Ross, a Scottish decision that seems to have slipped under the radar. Continue reading
I’m often asked how parties can be successful at a mediation. My answer is always that there are two rules parties need to follow:
Now, although these two rules do sound rather obvious, it is worth analysing them in more detail because mediation is not like any other dispute resolution process. It requires parties and party representatives to showcase different skills and, of course, every mediation is different.
The Construction (Design and Management) Regulations 2015 (SI 2015/51) (CDM 2015) are in force from 6 April 2015. Putting aside the CDM 2015’s transitional arrangements, it is not immediately clear whether a client may appoint a principal designer for only the first part of the project. Continue reading
In March 2014, I wrote about the relaunch of the ICC’s Infrastructure Conditions of Contract, which had been discussed at a presentation to the Society of Construction Law (SCL). This post looks at the redrafted main (re-measurement) contract, which has now been published, along with guidance notes. Continue reading
I think that most of us would agree that the law concerning an adjudicator’s jurisdiction (as well as issues related to natural justice), is now fairly well established and that, given the TCC’s strong support for adjudication, judges will dismiss spurious jurisdictional and natural justice challenges. I therefore get the impression that, while such challenges are regularly put to adjudicators during adjudications, they are not often used to resist enforcement of decisions because paying parties know the probable outcome.
However, when I read Coulson J’s judgment in St Austell Printing Company v Dawnus Construction, I confess to feeling that this was one of those occasions where the spurious challenges had slipped through the net and gone all the way to the TCC. While it may be a step too far to say that the employer needed St Jude (the patron saint of lost causes), rather than St Austol (the Cornish saint from which the name of the town derives), the position isn’t that far off. Continue reading
TS Eliot, Four Quartets:
“Time present and time past, are both perhaps present in time future, and time future contained in time past.”
January’s news is usually dominated by looking forward pieces, setting out what we expect to happen in the year ahead. This year was no exception and here is what we expect to happen in construction in 2015. With a general election on 7 May 2015 and the possibility of a change in government, it is impossible to anticipate what other policy and legislative changes there may be.
The Construction (Design and Management) Regulations 2015 (CDM 2015) were one change that we were sure about: they are one of the key pieces of legislation for this year.
Coming into force in April, the regulations were laid before Parliament this month. Given that CDM is an essential part of the health and safety legislation affecting all construction and engineering projects and property development in Great Britain (and there is no exclusion for small or domestic projects), these new regulations are essential reading for everyone involved in or advising on construction, development or redevelopment work. Continue reading
Should a developer ever be expected to give away its rights as employer under a building contract? You may think the short answer is no, and certainly not when the contractor is about to start work on site or in the middle of the build period. This is precisely when the developer needs to be able to pull the contractual levers and enforce the contract terms.
But surprisingly, some funders and their lawyers don’t see things that way. Instead, they insist that the developer’s rights under the building contract, any consultants’ appointments and any associated novations, collateral warranties or third party rights are absolutely assigned to the funder as a condition precedent to the release of development finance under the loan agreement. All this is, of course, in addition to the myriad of collateral warranties (or third party rights) required to be given directly to the funder.
I’ve struggled to make sense of this. In my mind it’s akin to buying a new car with a bank loan, only for the bank manager to appear at the showroom, congratulate me on my purchase and relieve me of the car keys (for “safe keeping”) along with the steering wheel for good measure. He then insists that I drive him back to his branch. You don’t need a satnav to know that his reasoning has taken a wrong turn. Continue reading
What have the Romans ever done for us? comes from Monty Python’s Life of Brian and was the inspiration for this post:
“All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, the fresh-water system, and public health, what have the Romans ever done for us?”
As I learnt from reading Akenhead J’s judgment in Savoye v Spicers, the Romans also gave us the words “construction” (the origin being the Latin verb “construere”, which broadly means “putting together”) and “structure” (the origin being the Latin verb “struere”, which apparently means something that has been placed, built, arranged or prepared). Continue reading