REUTERS | Yuriko Nakao
December 16, 2014

The importance of notices, the importance of notices and the importance of notices

It was Max Abrahamson who famously once wrote:

“A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records. It is impossible to exaggerate the extent to which lawyers can find unexpected grounds, often quite real, on which to cast doubt on evidence if it is not backed by meticulously established records.”

Following ISG Construction v Seevic College, parties wishing to defend claims for sums allegedly owed under construction contracts should focus on the importance of notices, particularly payment and pay less notices. Continue reading →

REUTERS | Vasily Fedosenko
December 16, 2014

Email arrangements over Christmas and the new year

Following business as usual this week, Practical Law Construction will send its last email of 2014 next week, to arrive in your inbox on Wednesday 24 December 2014. We are then taking a break until the new year.

The first email of 2015 will be sent to arrive in your inbox on Thursday 8 January 2015. This email will include reports of all developments since 23 December 2014, as well as Practical Law’s looking forward to 2015 pieces.

Merry Christmas and a happy new year.

REUTERS | Toby Melville
December 9, 2014

Lack of pay less notice meant “open and shut” adjudication case

I have to confess to having a small chuckle to myself when I read Edwards-Stuart J’s comments in Harding v Paice about how the third adjudication appeared to be “a model of how an adjudication should not be conducted”. This didn’t seem to be a reflection of the adjudicator, who the judge had “considerable sympathy for”, but how the referring party had conducted itself. For example, the judgment refers to a considerable volume of material put before the adjudicator, hundreds of pages of authorities, electronic copies provided when the adjudicator wanted hard copies and a refusal to extend the 28 days to 42 days because the referring party thought it had an “open and shut matter” (which the adjudicator clearly did not agree with). I’m sure many of us will share the judge’s sympathy for the adjudicator, as we’ve all been there in one way or another.

However, aside from procedural issues, the stand out issue for me is that this judgment demonstrates how the new payment regime has affected adjudication. Continue reading →

REUTERS | Toby Melville
December 8, 2014

Have you lost interest? Right to recover interest for late payment

A claim for interest will often be the first remedy sought in the event of late payment. As such, it is an issue close to the hearts of contracting parties. It is also often an area of confusion in the Gulf region given the general prohibition on the levying of interest under Islamic Sharia law, the underlying framework of the Gulf legal system.

In this final part of a three-part blog series, considering some key issues in the context of the Qatari and UAE construction markets, we look at how interest is dealt with under UAE and Qatari law. We have previously looked at liquidated damages (LDs) and time bars. Continue reading →

REUTERS | Lisi Niesner
December 5, 2014

Main contract adjudication provisions not incorporated into sub-contract

Edwards-Stuart J has recently held that main contract adjudication provisions were not incorporated into a sub-contract. As a result, the appointed adjudicator had jurisdiction to deal with the dispute over the non-payment of Inviron’s application for £643,283.

Imtech Inviron v Loppingdale Plant

Loppingdale was appointed under a framework agreement to carry out various infrastructure works at Stansted Airport. It sub-contracted certain M&E works to Inviron.
A dispute arose as to payment under an interim application, which was referred to adjudication. Inviron obtained a decision in its favour from an adjudicator appointed by TECBAR, Mr Ben Sareen, for more than £600,000. Loppingdale refused to pay, contending that the adjudicator had not been properly appointed. Continue reading →

REUTERS | Tobias Schwarz
December 5, 2014

Adjudicating under a RIBA or JCT domestic building contract

When advising on a home project there has never been a “right” answer to the question of which contract to choose. As is so often the case, the choice of contract should be governed by the needs of the parties and the project.

To date, domestic parties have had to look to the JCT’s home owner/occupier contracts or those produced by bodies like the Federation of Master Builders (FMB). Alternatively, they have relied on the JCT’s Minor Works Building Contract (or even more sophisticated contracts from the JCT suite).

Last month, RIBA published two new contracts, the Concise Building Contract 2014 and the Domestic Building Contract 2014. As the titles imply, the first is for simple commercial building work (and is unsuitable for non-commercial work, such as work done to someone’s home). In contrast, the second is suitable for domestic work including “renovations, extensions, maintenance and new buildings”, but is unsuitable for commercial works.

So, with a new domestic contract in the market, are things about to change and, if they do, what does it mean for those parties that end up in a dispute with their builder?

Continue reading →

REUTERS | Srdjan Zivulovic
December 3, 2014

Termination for convenience and the “minimum performance rule”

Termination for convenience clauses are a common feature of modern commercial contracts. Terminating a contract in this way has the advantage of avoiding a default-based confrontation. It is also traditionally considered a more expensive way to terminate: parties invoking this type of clause will expect to pay an element of lost profit to the contractor or supplier. However, this will not always be the case, as Comau UK Ltd v Lotus Lightweight Structures illustrates.  Continue reading →

REUTERS | Jose Manuel Ribeiro
December 2, 2014

Melville Dundas revisited

We have removed the content of this post as the judgment it referred to was heard in private and should not have appeared on BAILII.

REUTERS | Mike Blake
December 2, 2014

How much time have you got? Enforcing contractual notice provisions

This is the second of a three-part blog series in which we consider some key contractual issues in the context of the Qatari and UAE construction markets.

In our first blog, we looked at the principle of freedom to contract as a matter of UAE and Qatari law in the context of liquidated damages (LDs). You might expect this principle would extend to allowing parties to a construction contract to agree a contract term that barred recovery of additional time and money, except where strict notice procedures are followed. This is not necessarily the case: a court or tribunal will not always uphold and enforce such a term, often referred to as a “time bar”. In this article we explore whether time bars may be considered contrary to the provisions of the UAE and Qatari Civil Codes. Continue reading →