Obrascon Huarte Lain SA v AG for Gibraltar approves an interpretation of the notice requirements in the FIDIC Conditions of Contract that may offer contractors greater flexibility as to when they must notify an entitlement (or risk losing it).
REUTERS | Jason Lee
June 17, 2014
When must a contractor give notice of an entitlement under FIDIC’s condition precedent clause?
REUTERS | Ilya Naymushin
Mediation remains a hot topic. Section 7 of the TCC Guide (ADR) has just been revised and there are two recent cases about an unreasonable refusal to engage in ADR, R (on the application of Paul Crawford) v The University of Newcastle-upon-Tyne and Garritt-Critchley v Ronnan. Continue reading
REUTERS | Fabrizio Bensch
Much has been said and written about the decision in Mitchell v News Group Newspapers Ltd on the new, stricter approach to applications under CPR 3.9 for relief from automatic sanctions. However, relatively little has been said about the consequences of the Mitchell sanctions for the ongoing conduct of the action.
This post considers two common types of missed deadlines: the exchange of witness statements and expert evidence. It discusses how the court will approach an application for relief from sanctions, and what happens when relief is denied. Continue reading
REUTERS | Jose Miguel Gomez
June 10, 2014
What is NEC3’s clause 10.1 for?
Whether core clause 10.1 of the NEC3 suite of contracts serves any practical purpose or is merely aspirational is a debate many enjoy having. The latest decision of Northern Ireland’s Court of Appeal in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Ltd suggests one possible use is as an aid to interpretation.
REUTERS | Kim Hong-Ji
June 10, 2014
Revisiting expert evidence again
In the last 15 months I’ve posted a blog about expert evidence on five occasions (I know, I’ve counted them). The overwhelming message from all of these posts is that the experts parties appoint could do better, either in the quality of their expert testimony, not being partisan or biased and in having the appropriate expertise for the dispute.
It was therefore interesting to read Akenhead J’s views on experts in his article for the Academy of Experts journal, The Expert and Dispute Resolver, earlier this year. Continue reading
REUTERS | Ricardo Moraes
June 4, 2014
The continued growth of statutory adjudication is good news for a global construction industry
The continued proliferation of legislation providing for the mandatory adjudication of construction payment disputes is a welcome step in the global trend of encouraging alternative and interim dispute resolution. Experience of dispute resolution models of this type feeds into international practice in jurisdictions where this is not, presently, the norm, with positive results for all.
Last month Malaysia became the latest country to bring into force legislation providing for the mandatory adjudication of construction payment disputes. Continue reading
REUTERS | Jason Lee
June 3, 2014
Witness evidence, memories and gull chicks
EM Forster may have written the classic novel, Where Angels Fear to Tread but, at this time of year, it may not be angels that have to look where they are going, but people, especially in urban areas with a gull population. If you are wondering what I’m referring to, take a look at the judgment in Kelly v Riverside Inverclyde (Property Holdings) Ltd.
Although this is a personal injury case, it ties in with what Matt was saying recently about witness evidence and the vagaries of our memories. Given the number of comments that Matt’s blog received, I thought it was worth revisiting the topic. Continue reading
REUTERS | Vasily Fedosenko
May 30, 2014
May 2014 digest: all change at the TCC
Robert Louis Stevenson, Epilogue of the Cigar Divan:
“These are my politics; to change what we can; to better what we can; but still to bear in mind that man is but a devil weakly fettered by some generous beliefs and impositions.”
Although last month’s digest was all about change, an important change for construction litigators took place this month with the publication of the third revision of the TCC Guide. For those familiar with the TCC, you will know that the last revision (in October 2010) incorporated many of the recommendations in the Jackson report, long before they saw the light of day in the CPR “revolution” of April 2013. However, many others were missing, but not any more. This latest revision has many minor changes scattered throughout and several new and significant points are addressed, such as costs management (including costs budgets), menu options for disclosure and the e-disclosure protocol.
To make it easier for you, we published a note explaining what the key differences from the second revision are. We also published new notes on costs management and disclosure. Continue reading
REUTERS | Eduardo Munoz
Spring may be a time for lambs to frolic in the fields but, it seems, it isn’t a time for adjudicators to frolic, at least not on this occasion. If you are wondering what an earth I’m talking about, take a look at Lord Malcolm’s judgment in Miller Construction (UK) Ltd v Building Design Partnership Ltd.
This is the second time in a few weeks that we’ve blogged about a Scottish case (you may recall that Matt recently blogged about Lord Woolman’s judgment in T Clarke v MMAXX Underfloor Heating). On both occasions the court has supported the adjudication process. That’s quite encouraging since I must confess to getting a wee bit disheartened about blogging on Scottish cases where the court didn’t support adjudication (for example, see my posts dated 23 April 2013 and 19 April 2011).
Anyway, I digress and so back to Miller v BDP. Continue reading
REUTERS | Mike Blake
May 22, 2014
The new TCC Guide: post-Jackson pitfalls
The third revision of the second edition of the TCC Guide was published on the MOJ website on 1 May 2014. The first edition of the Guide since the Jackson reforms, it contains interesting and important changes from the second revision, published in October 2010.
Here are a few of my selected highlights for practitioners to watch out for. Continue reading