REUTERS | Vasily Fedosenko
July 15, 2014

Late submissions and split costs orders in adjudication

A couple of weeks ago I wrote about party-party costs and whether adjudicators are up to the job of dealing with the parties’ costs, if they have the power to do so. In setting out my thoughts on whether adjudicators do have the skills (and I think those with arbitrator training certainly do have), I didn’t mention some of the intricacies of costs, such as what happens if one of the parties asks the adjudicator to make a split costs or issues-based order. I thought about it recently, only because I was considering a different issue – should I allow the referring party to put in yet another submission – and I wondered what impact a further submission may have on the overall outcome of the adjudication, as well as whether it would incur further unnecessary costs at a late stage of the process.

Continue reading →

REUTERS | Eduardo Munoz
July 8, 2014

“Appropriate deduction” – it’s not money for nothing

It’s not often that we get a TCC judgment dealing with the interpretation of everyone’s favourite suite of domestic contracts, the JCT. Therefore, if you are a bit of a saddo like me, you will have read Akenhead J’s judgment in Oksana Mul v Hutton Construction Ltd with interest. In this case Akenhead J decided as a preliminary issue the meaning of an “appropriate deduction” under clause 2.30 of the Intermediate Form of Contract, 2005 edition (IC05), which is something I’ve had to deal with in a few adjudications over the years.

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REUTERS |
July 8, 2014

Personal liability, contractual liability, tortious liability: what’s the difference?

Some of you may recall poor Mr Babb the surveyor who, in 2001, ended up with personal liability for a valuation he prepared when his employer went bust (Merrett v Babb).

Fast forward to 2014 and Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd and others, where Sainsbury’s tried to run the same argument when it claimed that one of its car parks was so defective that it had to be demolished.

Unlike Miss Merrett and her mother, Sainsbury’s failed, giving designers some comfort as to their potential liability. Continue reading →

REUTERS | Jose Miguel Gomez
July 8, 2014

Denton: Mitchell clarified and amplified

Relief from Sanctions: The background

Following the implementation of the Civil Procedure Rules it was widely considered that the courts were being too indulgent in their attitude towards parties that failed to comply with deadlines imposed by rules, practice directions and court orders. This general perception led to the publication of the Review of Civil Litigation Costs Final Report of December 2009, in which Sir Rupert Jackson noted that:

“…courts at all levels have become too tolerant and delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system. The balance therefore needs to be redressed.”

On 1 April 2013 a revised version of CPR 3.9 was introduced, intended to redress the balance referred to above by altering the factors to which the courts should have regard in determining whether to grant relief from sanctions. Continue reading →

REUTERS | Tobias Schwarz
July 3, 2014

January to June 2014, a half year case review

Aristotle:

“How many a dispute could have been deflated into a single paragraph if the disputants had dared to define their terms.”

The first half of 2014 has seen a number of important decisions affecting construction and engineering practitioners. However, we have not included cases arising from the Jackson reforms, particularly costs management and relief from sanctions applications as a consequence of the Court of Appeal’s judgment in Mitchell v News Group. Continue reading →

REUTERS | Jumana El Heloueh
July 1, 2014

Enforcing domestic arbitral awards in UAE: anticipating the inevitable

“Procedural irregularities” are increasingly being used as the basis for resisting domestic arbitral awards in the UAE. For any party who is or may be involved in an arbitration in the UAE, it is critical to understand the procedural requirements contained in the UAE’s Civil Procedure Code (CPC) and how this is being interpreted by the UAE courts. This is because, to those unfamiliar with the CPC, the grounds for resisting enforcement may seem to be based on minor and insignificant technicalities.

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REUTERS | Mike Blake
July 1, 2014

Adjudicators determining party-party costs in adjudication

Over the last year or so, much has been written about the impact of the costs management and costs budgeting aspects of the Jackson reforms on High Court litigation. It doesn’t stop at written articles either. Whenever I go to a construction function these days, it seems to be the one topic that everyone is talking about. Everyone seems to have a “war story” about some aspect of costs management or the impact that the Mitchell decision has had on the conduct of litigation. It is often said that these reforms will push parties away from the courts and into the arms of arbitrators. I do not know if that is true or whether, once everyone gets the hang of the new(ish) rules, things will bed down and it will be business as usual at the TCC. Last year, Jonathan considered some aspects of costs in arbitration, but I wonder if adjudication could be the answer for those with concerns about the courts.

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REUTERS | Mike Blake
June 30, 2014

June 2014 digest: cricket, Wimbledon and the World Cup

Thomas Carew, A Song:

“Ask me no more where Jove bestows, when June is past, the fading rose;

For in your beauty’s orient deep, these flowers, as in their causes, sleep.”

June represents the start of summer, with roses in bloom and the summer solstice. June 2014 has been one of the warmest on record, which is good for the sporting events that are ubiquitous with the summer months (think MCC ties and fancy dress at the cricket and strawberries and cream at Wimbledon). This year we have also had the World Cup to entertain us. While some football fans will be disappointed their team didn’t make the knock out stages, others are just enjoying what is a feast of footie each day after work. Continue reading →

REUTERS | Ahmad Masood
June 24, 2014

Could legal advice privilege apply to claims consultants after all?

Let me start with an apology. I appreciate that this is the second time I’ve blogged about this rather dry subject this year. However, after April’s blog on the subject (Privilege and adjudication revisited), a friend of mine pointed out a twist which may mean that non-solicitor firms offering claims consultancy services can rely on legal advice privilege after all.

Let me explain. Continue reading →

REUTERS | Amit Dave
June 17, 2014

Can waiver or estoppel arguments rebut a condition precedent defence?

Over recent weeks, both Jonathan Cope and David Robertson have written about Akenhead J’s judgment in Obrascon v AG of Gibraltar. While they both looked at the condition precedent issues related to clause 20.1 of the FIDIC Conditions of Contract (in that case, the Yellow Book), Jonathan also considered the judgment’s potential impact on other standard form contracts (such as JCT and NEC3) and David highlighted some drafting points for both contractors and owners.

What neither considered (presumably because it did not arise in Obrascon, at least not in the judgment), is the possible impact that arguments related to waiver and estoppel may have on a condition precedent clause to rebut its finality. Continue reading →