John Greenleaf Whittier, Barbara Frietchie:
“Up from the meadows rich with corn, clear in the cool September morn…”
We continued to produce new materials on NEC4 this month, with a new note and new Z clause on Option C of the ECC by Iain Suttie. Not to be outdone by a colleague, John Hughes-D’Aeth contributed 12 Z clauses, including ones covering confidentiality, copyright, data protection and third party rights. Finally, we published a note on the new design, build and operate contract by Ross Hayes. We haven’t finished yet, so watch this space!
It wasn’t that long ago that we were writing new content because of JCT 2016. This month, we published termination notices for use with the SBC 2016 and DB 2016, referring to clause 8.4.1 and clause 8.4.2. It seems FIDIC 2017 (or will it be 2018?) will be next, since we told you to expect the launch of the first of the new wave of FIDIC contracts in December, which will necessitate a whole raft of new content from us in early 2018.
Thankfully, the courts’ summer recess has felt like a proper recess this year, with very few judgments making their way into the public domain. Of those that did, we told you that:
- One adjudicator’s decision on contract interpretation was overturned in a declaratory relief application (which Matt Molloy considered), while another was enforced as he had jurisdiction. In an unreported judgment (so far), Tom Owen looked at enforcing an adjudicator’s decision against a party threatening insolvency.
- In one case, the High Court refused a stay under section 9 of the Arbitration Act 1996 because there was no implied contract incorporating the arbitration agreement. In another, the stay was refused despite the possibility of conflicting decisions under the principal contract and related guarantees.
- In a trial of preliminary issues, the TCC considered whether a claim for wasted expenditure amounted to a claim for loss of profit (which Helen Armstrong discussed). It also considered the meaning and effect of the contract’s limitation of liability clause.
- The High Court gave guidance on the approach to identifying third parties under the Third Party Rights Act 1999.
- The Outer House, Court of Session decided that a claim under an on demand bond was valid.
Payment under a construction contract always throws up lots of issues. In this video, you can watch Catherine Piercy and Louis Zvesper discuss developments since ISG Construction Ltd v Seevic College, culminating in Fraser J’s judgment in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd.
Adjudication is always topical. In this video, you can watch Helena White consider Hutton Construction Ltd v Wilson Properties (London) Ltd and the implications for parties who are dissatisfied with an adjudicator’s decision and want to resist enforcement by raising substantive issues. Matt Molloy also explained some of the natural justice hurdles an adjudicator faces.
Other topics under consideration included:
- Jonathan Cope looking at an appeal on a point of law under section 69 of the Arbitration Act 1996 and the expert evidence in Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd.
- Claire Mills explaining the Contract (Third Party Rights) (Scotland) Bill’s impact on collateral warranties in Scotland.
- Paul Cacchioli and Stephen Blakey continuing their piece on Network Rail’s Dispute Avoidance Panel (DAP pilot).
- James Marshall and Julia Joseph discussing direct procurement in regulated sectors such as electricity, water and rail.
It is just over three months since the Grenfell Tower fire. The government has published further advice following its cladding fire tests. Also, the independent review of the Building Regulations 2010 and fire safety has published a call for evidence, which closes on 13 October 2017.
And finally, it is our construction law conference next month, chaired by John Hughes-D’Aeth. If you haven’t already done so, check out the website to see who else is speaking and to reserve your place. It will be the place to be on 12 October!