REUTERS | Heinz-Peter Bader

February 2014 digest: Jackson reforms, adjudication and auroras


“An aurora (from the Latin word aurora, “sunrise” or the Roman goddess of dawn) is a natural light display in the sky particularly in the high latitude (Arctic and Antarctic) regions, caused by the collision of energetic charged particles with atoms in the high altitude atmosphere (thermosphere).”

February is sometimes described as a bridge between January and March, a month that connects winter to spring. Some days are wet, some dry, most are cold, while others tantalise us with weak sunshine and a sign of spring to come. This year it has just been grey and wet, but milder than usual, with long days of rain. However, as the month came to a close (and it seems that for many parts of the country, it went out with a colourful bang), the rains and flooding thankfully started to dissipate. The effects of this are likely to be felt for a long time to come and we set out a few legal points to help you.

Since the Court of Appeal’s judgment in Mitchell v News Group Newspapers Ltd was handed down in November 2013, we have seen a number of cases dealing with relief from sanctions under CPR Part 3.9. The Jackson reforms also introduced costs budgeting to civil litigation in a form not seen before. To help you keep on top of what is happening, we have published a table of the relief from sanction cases and a table of the costs budgeting cases. We also told you that the costs management exception may be extended to £10 million for all courts from April 2014 and Catherine Gelder highlighted concerns about the proposal to increase court fees.

Apart from cases dealing with the consequences of the Jackson reforms, this month the courts have also considered whether:

  • In a claim based on negligent misrepresentation made in pre-contractual negotiations, there was a continuing representation that remained in effect until the contract was concluded (there was).
  • A valid demand made under a performance bond remained valid even if it subsequently became clear that the seller was not actually entitled to the money guaranteed by the performance bond (it did).
  • To grant an interim injunction under section 44 of the Arbitration Act 1996 (it did).
  • To reject a challenge to the arbitrator’s award under section 68 of the Arbitration Act 1996 (it did), which Craig Macphee discussed.
  • To dismiss an appeal against a declaration concerning the interpretation of two apparently conflicting contractual provisions and a contractual order of precedence (it did).
  • To strike out a claim issued at the end of the limitation period for failure to serve the claim form in time (it did).
  • To overturn a costs decision where a party recovered only a small percentage of its counterclaim (it did). (The Court of Appeal also considered the binding nature of adjudicators’ decisions and Matt Molloy discussed whether adjudication is always cost-effective.)

A number of adjudication issues were also before the courts, which considered whether:

  • To reduce the costs claimed by a claims consultant in adjudication enforcement proceedings (it did).
  • The adjudicator had jurisdiction if the work was carried out under more than one contract (he didn’t because it was).
  • If the adjudicator’s decision was unenforceable, to grant the declaratory relief sought (it didn’t), which Jonathan Cope considered.
  • To allow an application for permission to appeal in connection with adjudication business (it didn’t).

Jonathan Cope considered the meaning of dispute and and Matt Molloy also looked at what happens to the adjudicator’s fees when an adjudication is stopped by an injunction.

On the public procurement front, the Court of Session lifted the automatic suspension on a waste contract, the Council of the European Union adopted two new public procurement directives, we told you about January’s cases, we published an article on procurement time limits and the government published draft guidance on new construction procurement models.

In other news, Tom Owen discussed causation and nuisance in tree root claims, Saul Lemar looked at the recovery of business costs incurred when remedying a breach of contract, Edward Davies pondered the question of whether someone is an adviser or a decision maker and Adriano Amorese considered indemnities and asset protection agreements. Also, there was a consultation on clauses from the Insurance Contracts Bill and the Law Commission published a report on the control of invasive non-native species (like Japanese knotweed).

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