What happens when one party refuses to pay the adjudicator and challenges the reasonableness of his fees?
REUTERS | Mike Blake
August 12, 2014
The reasonableness of the adjudicator’s fee
REUTERS | Navesh Chitrakar
August 11, 2014
Why mediate a delay claim?
This post considers some of the advantages (financial and otherwise) of mediating, as well as looking at how best to prepare for the mediation of a delay claim and how best to present a delay claim at a mediation.
REUTERS | Lisi Niesner
When I read Lord Malcolm’s judgment in Bouygues E&S Contracting UK Ltd v Vital Energi Utilities Ltd, I was reminded of the TV game show, Supermarket Sweep. For those unfamiliar with Supermarket Sweep, as far as I can remember (with a little help from Wikipedia) the premise was that contestants played games to accumulate time, which they then used to fill their shopping trolley with goods by running around a supermarket. The one with the most valuable trolley at the end won the prize.
When you read Lord Malcolm’s judgment in Bouygues v Vital, you will see why I drew the supermarket trolley analogy. Continue reading
REUTERS | John Kolesidis
August 1, 2014
Consequential loss exclusion clauses: the pitfalls
Consequential loss exclusion clauses are very common in commercial contracts, especially in those relating to construction and energy projects. They usually take a similar form to the following, which is from clause 17.6 of the FIDIC Red Book:
“Neither Party shall be liable to the other Party for loss of use of any Works, loss of profit, loss of any contract or for any indirect or consequential loss or damage which may be suffered by the other Party in connection with the Contract.”
The key thing to remember about consequential loss is that it doesn’t mean what you think it means. Continue reading
REUTERS | Mike Blake
July 30, 2014
July 2014 digest: Denton and JCT
John Steinbeck, Travels with Charley: In Search of America:
“What good is the warmth of summer, without the cold of winter to give it sweetness.”
Just like June, July has continued to be hot and sunny and to offer us a veritable feast of sport, with the World Cup finals (and Germany as the ultimate victors), Wimbledon, international cricket and the start of the Commonwealth Games in Glasgow. If that hasn’t been enough, it is only a couple of weeks before the start of the football season and the highs and lows that brings to many each year!
If you’ve had time away from the many sporting events, you may have noticed two major events in the legal world. If not, to recap:
- Practical Law subscribers now have access to the JCT 2011 suite of contracts, along with its guidance, as specimen PDFs.
- In Denton v TH White and others, the Court of Appeal produced a new relief from sanctions test. Continue reading
REUTERS | Alex Domanski
July 30, 2014
Keeping the (good) faith: discretion advised
A case of two halves
In our last blog Katy Saunders said farewell to the World Cup whilst also discussing key personnel LDs, in Bluewater Energy Services Limited BV v Mercon Steel Structures. While any mention of liquidated damages in the TCC sparks almost as much water cooler chatter as Luis Suarez’s appetite, this post discusses another interesting outcome from Bluewater.
Bluewater also tackled the issue of a party’s right to exercise discretion, and comments on how a good faith clause might affect such a right. With good faith clauses becoming more commonplace in construction contracts, it is important to consider their effect on how we interpret the contract as a whole. Continue reading
REUTERS | Ilya Naymushin
The astute and keen-eyed readers of this blog will have noticed the paucity of adjudication decisions coming from the TCC in recent months. They may have also noticed that Scotland’s Court of Session has fared a little bit better in the judgment stakes, giving us the odd case to write about (most recently, Jonathan looked at Miller v BDP, I considered T Clarke v MMAXX). The judgment in Charles Henshaw & Sons Ltd v Steward & Shields Ltd is therefore welcome in providing me (and others) with something more to say.
Even though Lady Smith’s judgment is mainly a restatement of existing principles, it is interesting because she sits in the Inner House, which (I understand) makes this case equivalent to an English Court of Appeal case. Just like south of the border, we seldom see appellate court decisions dealing with adjudication. Continue reading
REUTERS | Mike Blake
July 28, 2014
CITB Levy changes ahead
It has been a week or two of change in the construction industry. Matthew Hancock was appointed as the new construction minister and the Construction Industry Training Board announced that they are simplifying the way that the CITB Levy is calculated. This follows 18 months of industry consultation.
REUTERS | Kim Hong-Ji
July 22, 2014
TCC offers guidance for project monitoring surveyors
For those of you unfamiliar with the role of the project monitoring surveyor (PMS), they are commonly appointed by banks or other funding institutions to advise on the risks of acquiring an interest in a development, and then monitoring the development, approving draw-downs from the funding institutions and the like. As a result of many developers becoming insolvent from 2008 onwards, claims against these surveyors have been quite commonplace in the past few years as banks seek to recover their losses.
I have undertaken project monitoring myself and acted as expert witness in a number of cases where banks have pursued PMSs. However, other than Practical Law’s excellent practice note, the only other detailed guidance is a RICS Guidance Note, and even that is quite broad-brush (it is currently being updated). Furthermore, to the best of my knowledge, the role of PMS had not previously been dealt with in a High Court judgment. I have therefore been eagerly anticipating the TCC’s judgment in Bank of Ireland v Faithful & Gould & CBRE ever since the case appeared in the TCC court list back in April. Continue reading
REUTERS | Eric Thayer
July 16, 2014
The World Cup may be over, but should losing your key players always lead to penalties?
Reading through a judgment the length of Bluewater Energy Services BV v Mercon Steel Structures BV and others is no mean feat. Luckily for the brave and steadfast, the case considers a number of core issues that arise time and again in construction contracts and raises some interesting questions. One example that caught my eye was the analysis of liquidated damages (LADs) levied for the replacement or removal of key personnel.