A recent TCC decision potentially increases the significance of obtaining an order for indemnity costs.
In Kellie v Wheatley & Lloyd Architects Ltd, the successful defendant sought to recover costs of over £166,000 despite having had its cost budget slashed from over £140,000 to £91,700. It sought to get around the effect of the cost management order (CMO) by seeking an order for indemnity costs. Continue reading
When you’re in the midst of drafting a complex international construction contract, probably the last thing on your mind is specifying the governing law of your arbitration agreement. You may not think this is particularly important, or that it will be the same as the governing law of the underlying contract. This could prove a costly mistake.
Outside of renovating a kitchen, in construction circles we usually talk about kitchen sinks in the context of a claim where one of the parties has thrown everything in to it, the proverbial kitchen sink claim. In my experience, kitchen sink claims often crop up in adjudication, featuring in the law reports when the adjudicator’s decision is being enforced and one of the parties suggests the adjudicator breached the rules of natural justice in some way by dealing with it.
I therefore had a wry smile when I saw Leggatt J in the Commercial Court recently refer to a claim that included a “vast array of fittings and accoutrements” which were “palpably unjustifiable”, including the kitchen sink. It was one of the many items that had been included on a spreadsheet of repair costs prepared by the claimant’s engineering expert. I have Michael Mendelblat to thank for drawing my attention to this one. Continue reading
This post looks at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published last month and takes effect this autumn. In contrast to Surveyors acting as expert witnesses, which I discussed last time and which is aimed at RICS members and applies to any form of tribunal, the CJC’s guidance applies to an expert of any discipline who is instructed to act in court proceedings. It reflects the April 2013 Jackson reforms and replaces the previous version, which is currently annexed to PD35. Continue reading
Lord Byron, Don Juan, st.42:
“The English winter – ending in July, To recommence in August.”
As the quote suggests, August has not been the warmest of summer months this year and autumn feels as if it is approaching fast. The end of endless sunshine seemed to coincide with the start of the school holidays and, while many escaped the UK’s shores for sunnier climates, those who stayed have witnessed a rather quiet month.
How time flies. This time last year we were telling you about Practical Law Construction joining the Ask party. You can contact us using the “Ask a question” button on the Practical Law Construction homepage. Three years ago, the construction industry was preparing for the changes to the Construction Act 1996 and we were telling you all about that. To reflect the passage of time, we have updated all our materials, particularly in relation to payment, suspension and adjudication. Continue reading
Most of us are only too familiar with the argument (so beloved of contractors) that “time is at large”. We also know that it is rarely successful. The principle by which time becomes at large was recently commented on by Ramsey J in Bluewater Energy Services BV v Mercon Steel Structures BV and others:
“The principle is of some antiquity and has a surprising effect on the contractual obligations as to the time for completion. As I have found that there is an extension of time mechanism for acts of prevention and I am able… to determine the appropriate adjustments to the… Key Dates, this is not the opportunity to consider the underlying basis for the principle.”
In JSC BTA Bank v Ablyazov and others, the claimant Kazakhstani Bank sought disclosure of documents concerning Mr Ablyazov’s assets from Mr Ablyazov’s current and former solicitors. It was agreed that these documents would attract legal professional privilege unless falling within the so-called “iniquity exception”.
As the judgment arguably widens the application of this exception, those acting in cases where there are allegations of fraud should be aware of its potential application, even where there is no suggestion that they were aware of the fraud.
The question that I therefore seek to consider in this blog is, when will legal professional privilege cease to apply in respect of documents passing between a lawyer and his client in circumstances where there is no allegation of wrongdoing or knowledge of iniquity on the part of the solicitor? Continue reading
Over the years, I have written about various guidance aimed at those working to resolve disputes. This includes RICS’ guidance on how to deal with conflicts of interest and how to be an adjudicator. Two more pieces of guidance have recently been published.
This post considers Surveyors acting as expert witnesses (fourth edition), which RICS published in July. Next time I’ll be looking at the latest guidance from the Civil Justice Council, Guidance for the instruction of experts in civil claims 2014, which was published earlier this month. Both take effect this autumn. Judging by some of the recent cases (which Matt is considering), this guidance is essential as the message still isn’t getting through as clearly as many would hope. Continue reading
I’ve had a few adjudications recently where one of the parties has included a letter or document that was marked “without prejudice”. How the other party and I (as the adjudicator) have reacted is always fact dependent, but it can give rise to a number of issues. Continue reading
Hirtenstein v Hill Dickinson was a solicitors’ negligence case concerning the purchase of a luxury yacht. There have been a number of superyacht claims recently and they have often arisen as a result of late delivery. However, here one of the yacht’s engines was found to have been defective after sale. The issue was whether the purchaser’s solicitors should have advised the buyer that the seller should provide a personal guarantee as a condition of purchase.
While the court found that there had been negligence, it decided that it was not causative of the claimant’s decision to purchase the yacht without a personal guarantee. This meant that no loss was suffered. However, obiter, the court considered the principles of mitigation, and criticised the expert evidence in terms which are likely to be of wider interest. Continue reading