We have explored various topics as part of our intellectual property in construction series. To continue our discussion, we delve into some further thoughts on other common queries that we receive.
In this article we will look at:
It is eight months since I first blogged about the impact that COVID-19 was having on dispute resolution in England in a piece aptly called, Adjudicating in the shadow of coronavirus. (I don’t know why, but that title always makes me think of Gabriel Garcia Marquez’s book, Love in the time of cholera. I’ve no idea why, other than the lyrical way the title sounds. Certainly, the stories are worlds apart… but I digress…)
That blog was written at the start of the first national lockdown and I followed it a few weeks later with a piece about the lessons I’d learnt in those first few weeks. By the time Jonathan came to write his October post, A few lessons I have learned from resolving disputes during the pandemic, I’d say we had become “old hands” at this on-line stuff.
But has it been plain sailing and how is mediation faring in this on-line world? Continue reading
A Part 36 offer is an important tactical weapon that can be used by either party to encourage the other side to settle a dispute. That is because a Part 36 offeror may be entitled to substantial costs benefits if successful at trial. However, in order to benefit an offeror must comply with the rules set out in CPR Part 36.
This post looks at Pepperall J’s judgment in Essex County Council v UBB Waste (Essex) Ltd, where he held that if a Part 36 offer could be construed in one of two ways (one giving it effect and the other not), the construction giving it effect should prevail. Obiter, he also commented that minor defects in a purported Part 36 offer cannot be overlooked, and that principles of estoppel do not apply to the Part 36 regime. Continue reading
Cash-flow management remains one of the main problem areas in construction and engineering projects. Issues in getting paid, serious enough on their own, are often an early warning sign for a project heading into wider difficulties.
There can of course be a number of culprits for cash-flow difficulties. A few weeks’ ago, my colleague, Yousef Shakah, took a closer look at one routine offender: mishandled retentions. Today, I’m going to take a look at conditional payment clauses and consider the guises they can take, how different jurisdictions have chosen to deal with them, what problems they can cause and finally, in jurisdictions where they are permitted, approaches which have evolved to mitigate their misuse. Continue reading
Here’s a situation that arose recently in an adjudication where I acted for the responding party. It is a helpful reminder of how strict the adjudication time limits are, and the restrictions upon an adjudicator’s ability to change them without agreement from both parties. Continue reading
The past couple of months have been somewhat lean for TCC judgments on adjudication and arbitration matters, so when our (brilliant!) editor at Thomson Reuters asked me what I wanted to write about this week the answer was not immediately obvious to me. There’s certainly been a lot on the news over the past week and, for once in 2020, there has been some good news. However, you’ve all got plenty of apps and networks giving you your news fix, so I won’t dwell on that. I had pondered discussing my top five movies of the 1980’s, but suspect I won’t get asked to write another construction blog if I do that.
I therefore glanced through the last 12 years of blogs that Matt and I have written, and noticed one of Matt’s from May 2010 when he covered what Coulson J (as he was then) had said at a Society of Construction Law meeting earlier that month about the seven golden rules for adjudicators. The question struck me as to whether those rules have stood the test of time (they have), and they seem particularly relevant at the moment as a number of nominating bodies have been recruiting new adjudicators to their panels over the past couple of years, including RICS. Continue reading
Where the contractor has become insolvent, what obligations can an employer enforce when stepping-in to a previously novated professional consultant’s appointment in a design and build scenario?
A question that routinely arises in practice, this scenario is perhaps more relevant now than ever, not only because of COVID-19 but also because of the Corporate Insolvency and Governance Act 2020 (CIGA) that our colleague, Primrose Tay, blogged about.
This blog will take a closer look at this question. First, novation – what it is, what it does and what the novating party (here, the employer) needs to do when novating a contract to protect its position. Then step-in – how it works, what rights and obligations does the stepping-in party (here again, the employer) have and is it even possible now in the event of contractor insolvency? Continue reading
Last time, Jonathan talked about some of the lessons he’s learned while resolving disputes remotely. I thought I’d follow that with a few thoughts on the remote training that I’ve been doing this year (for obvious reasons) on the topic of expert determination.
When a project goes so poorly that an employer feels obliged to terminate its main contractor, the employer will often take an assignment of various sub-contracts. But what exactly does it mean to “assign a sub-contract”?
Of course, the employer may also claim against the main contractor for delay damages, additional costs to complete and so on, and the main contractor may wish to pass down its liability to the sub-contractor(s) whom it blames for the problem. But can it do so?
These questions, and more, were addressed by O’Farrell J in the recent TCC case of Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd. Continue reading
In 2015, one of the hot topics of the day (at least in construction circles) was the case of Galliford Try Building Ltd v Estura Ltd, where the TCC unusually ordered a partial stay of an adjudicator’s decision on the basis that to enforce the decision in full would result in “manifest injustice” to the paying party. There was a concern that the case would encourage a flurry of cases seeking to test the boundaries of that principle.
Indeed, since Estura, various attempts have been made to seek a stay on grounds of manifest injustice, but rarely have these cases been successful. This was not to be unexpected; the failure to secure a stay on the basis of “manifest injustice” simply emphasised the exceptional nature of the decision in Estura.
However, the recent case of JRT Developments Ltd v TW Dixon (Developments) Ltd is an example of where the TCC decided to buck the trend and follow Estura. In that case, the court ordered a stay of enforcement of a £1.15 million smash and grab adjudication decision obtained by JRT Developments Ltd (JRT) on the basis that in the “exceptional circumstances” of the case, there would be manifest injustice to TW Dixon (Developments) Ltd (TWD) if the judgment was not stayed.
In reaching that conclusion, the court considered “all of the circumstances of the case” and therefore took into account factors beyond those that had been identified in Estura as relevant. These factors included, significantly, the factual context in which JRT had submitted its payment application, which resulted in an adjudicator’s decision in its favour, and the nature of the sums claimed in that application. Continue reading