REUTERS | Alexander Demianchuk
May 20, 2014

Memory… our fickle friend?

I was reading Tony Bingham’s piece on witness evidence in Building the other day and I was sufficiently intrigued by his reference to Leggatt J’s comments in Gestmin v Credit Suisse and another, that I felt compelled to dig out the judgment and read it for myself (or, as least, the relevant bits).

Although the case was concerned with alleged negligent investment advice related to the sale and purchase of shares (so nothing whatsoever to do with construction or adjudication), it is the section in the judgment described as “Evidence based on recollection” which is of interest. Continue reading →

REUTERS | Fabrizio Bensch
May 20, 2014

TCC Guide catches up with Jackson

We now have the revised TCC Guide, updated to ensure TCC practice is aligned with the CPR changes brought in as part of the Jackson reforms.

Through TeCSA, we were fortunate in that we had the opportunity to assist Edwards-Stuart J, Judge in Charge of the TCC, in updating the Guide. For those of you who haven’t yet taken a look, don’t expect anything radically different. I think the view was taken that “if it ain’t broke, don’t fix it”. The key driver for the update was simply to reflect the changes in procedure already in play in the TCC following the Jackson reforms, rather than remedying any perceived inadequacies in the existing version.

That said, personally I had always tended to prefer the look and feel of the Commercial Court Guide and the good news is the TCC Guide now has the same font, format and more detailed contents page as the Commercial Court Guide. A minor change but a welcome improvement for navigating what is a fairly lengthy tome.

So what are the main points of interest in the revised guide and what, if any, can be considered as missed opportunities? Continue reading →

REUTERS | David Mdzinarishvili
May 13, 2014

Conditions precedent – a glimmer of hope for contractors?

After seeing that Akenhead J’s judgment in Obrascon Huarte Lain SA v Her Majesty’s Attorney General for Gibraltar was published recently, I thought it was about time I sat down and read it. However, I had second thoughts when I saw that it stretched to 170 pages and wondered what interesting bits I could skip to.

Akenhead J often makes some interesting comments about experts, and this case is no exception. He described one of the health and safety experts as “eccentric” and said that “on occasions it felt as if one were in a university tutorial group as he gave evidence”. I can only imagine the excitement of a tutorial on health and safety matters, but rather than skipping to this part of the judgment, I decided instead to concentrate on Akenhead J’s comments on the conditions precedent requirements for giving notice of claims for time and money. Continue reading →

REUTERS | John Kolesidis
May 13, 2014

Court of Appeal considers CPR 3.9 and Mitchell in Chartwell v Fergies

In Chartwell Estate Agents Ltd v Fergies Properties SA, the Court of Appeal upheld Globe J’s first instance decision granting relief from sanction for late service of witness statements where the non-compliance was not trivial and there was no good reason for the default.

This decision acknowledges the role of case management discretion when applying the tests in CPR 3.9 and Mitchell v News Group Newspapers Ltd. Continue reading →

REUTERS | Carlos Barria
May 9, 2014

A first under the Building Act 1984 (part 2)

Hastings pier opened in 1872, enjoyed its prime in the 1930s and was a popular music venue in the 1960s, with many notable bands (including the Who and the Rolling Stones) playing there. But, like all Victorian piers, it reached the end of its design life and has, more recently, been in increasing dilapidation.

The pier made it into the law reports a year ago (which I commented on at the time), and has done so once again, this time before the Court of Appeal in Manolete Partners plc v Hastings Borough Council. It remains the first successfully litigated claim for compensation under section 106 of the Building Act 1984. Continue reading →

REUTERS | Kim Hong-Ji
May 6, 2014

A referring party that “would never give up”

It is quite common for an adjudicator to be appointed multiple times, either by the same parties on one project, or by one party on different projects. This may arise for a number of reasons, including the nature of the parties’ dispute, whether the individual is named in the contract as the adjudicator or because the referring party thinks highly of that individual (for whatever reason).

I wrote about the whys and the wherefores of multiple appointments a few years ago, and they came to mind again recently when I was reading Lord Woolman’s judgment in T Clarke v MMAXX Underfloor Heating. Continue reading →

REUTERS | Robert Pratta
April 30, 2014

April 2014 digest: “the times they are a-changin”

Bob Dylan, Times they are a changing:

“Come writers and critics who prophetize with your pen, keep your eyes wide, the chance won’t come again

And don’t speak too soon for the wheel’s still in spin, and there’s no tellin’ who that it’s namin’

For the loser now might be later to win, for the times they are a-changin’.”

April is derived from the Roman name Aprilis which, in turn, comes from the verb aperire, meaning “to open”. As trees and flowers begin to open, it is an apt name for a month characterised by seasonal changes. Continue reading →

REUTERS | Alex Domanski
April 30, 2014

Mediation: some frequently asked questions

Mediation is fast becoming a popular method of alternative dispute resolution in many areas of law.

The courts’ support for mediation is evident from the many decisions, including PGF II SA v OMFS Company 1 Ltd  (which I looked at last year), emphasising that parties should attempt to resolve their dispute early and without being encouraged by the courts to do so. Indeed, section 14 of the White Book 2014 (Alternative Dispute Resolution) says that the message from the courts is that parties should seriously consider engaging in ADR without troubling the court or waiting for case management directions.

Although parties are alive to the idea of mediating their dispute, questions are often raised about how it all works. This blog tackles some of the questions frequently asked. Continue reading →

REUTERS | Ricardo Moraes
April 29, 2014

Not solving every problem

They say that the UK has weather instead of a climate. Here in Panama City, there is definitely a climate.

The temperature is in the mid-thirties (Celsius) every day regardless of the season. For eight months it is rainy, very rainy, with frequent thunderstorms. The record was set in 2002 when 562 mm of rain fell in one 24 hour period. (That’s nearly two feet.) Continue reading →