REUTERS | Andrew Winning

September 2014 digest: autumn leaves and misty mornings

Dylan Thomas, Collected Poems:

“And I rose in rainy autumn, and walked abroad in a shower of all my days…”

September has been a warmer and drier month than on average, but autumn is now in full swing and the leaves are starting to turn and fall. That means the Michaelmas court term is about to start and we are only 12 weeks away from Christmas!

The courts may have been in recess, but a number of judgments were published in September (including three on adjudication), considering whether:

  • An architect was in breach of his duty of care to his clients and was professionally negligent (he wasn’t).
  • A contractor should pay its sub-contractor advance payments due under a memorandum of agreement (it should).
  • An adjudicator’s decision should be enforced and the defendant ordered to pay the claimant’s costs on an indemnity basis (it should).
  • Summary judgment should be granted, but a partial stay of execution granted because of the claimant’s company voluntary arrangement (CVA) (it should).
  • The Contracts (Rights of Third Parties) Act 1999 granted a third party the right to adjudicate a dispute arising under a construction contract (it didn’t).

Experts are often in the news for the wrong reasons and this month was no exception. Matt Molloy considered some of Leggatt J’s views in Hirtenstein v Hill Dickinson, Jonathan Cope reviewed the latest guidance from the Civil Justice Council and the SCL published the results of its consultation on expert evidence. Other interesting topics under discussion included Crispin Winser discussing indemnity costs orders when there is an approved costs budget, Calum Lamont highlighting the curious nature of CPR 7.7 and Jonathan Cope looking at the pros and cons of settlement in adjudication proceedings.

In arbitration news:

  • A Swiss court held that an arbitral tribunal had jurisdiction to hear a dispute that had not gone through the dispute adjudication board (DAB) procedure in a FIDIC contract.
  • Matt Molloy considered the judgment in Fermanagh District Council v Gibson, which was concerned with the late service of a notice of dissatisfaction under an NEC contract, resulting in the court refusing to extend the time for the bringing of arbitration proceedings under section 12(3)(a) of the Arbitration Act 1996.
  • Victoria Clark looked at governing law in arbitration clauses.
  • Carol Mulcahy explained the results of BLP’s fourth annual arbitration survey.

On the public procurement front, we saw a consultation on the transposition of the new EU public procurement directives and the Public Contracts Regulations 2015 and we published a checklist showing the minimum time limits applicable to the procurement procedures under the Public Contracts Regulations 2006.

And finally, we are step closer to new Construction (Design and Management) Regulations (CDM), as the HSE published the outcome of its consultation on the proposed changes.

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