JRR Tolkien, The Fellowship of the Ring:
“‘So my plan is spoilt!’ said Frodo. ‘It is no good trying to escape you. But I’m glad, Sam. I cannot tell you how glad. Come along! It is plain that we were meant to go together. We will go, and may the others find a safe road! Strider will look after them. I don’t suppose we shall see them again.’ ‘Yet we may, Mr Frodo. We may,’ said Sam.”
The aftermath of the Brexit vote dominated the news again this month. We still don’t know when the Article 50 notice will be given (which triggers the two-year period for exit negotiations under the Lisbon Treaty), but we now know that Theresa May will lead the country during those negotiations. Francis Ho looked at some of the potential consequences for construction.
The end of July marks the end of the Trinity term, which has resulted in a plethora of cases from all divisions, with the:
- Supreme Court allowing insurers to unravel a settlement agreement, restating the law regarding illegal transactions, holding that the fraudulent claims rule does not apply to collateral lies (which Paul Reed QC considered) and confirming the status of Privy Council decisions.
- Court of Appeal considering unilateral waiver of without prejudice privilege and an appeal against a non-party costs order.
- Privy Council upholding the way in which substantial variations had been valued under a lump sum JCT contract.
- TCC refusing summary judgment on an interim application for payment under a partnering contract and because there was a triable issue over the nature of the parties’ contract (which Jonathan Cope considered), although it did enforce one adjudicator’s decision. It also looked at underpayment of court fees, applications to amend and limitation. The Commercial Court also considered whether a termination clause must be invoked in good faith.
On the non-contentious front, the Law Society and CLLS published guidance on executing documents using an electronic signature, we published a note on FIDIC’s Yellow Book and the JCT released the 2016 editions of its Sub-Contract suite.
July saw a broad range of topics under discussion, with:
- Jonathan Cope looking at the SCL’s delay and disruption protocol.
- Charlie Thompson considering contract interpretation.
- Elizabeth Repper providing her regular mediation update.
- Matt Molloy highlighting the consequences of Deluxe v Beck and unintentional witness bias in court.
- Natalie Wardle on the future of renewables.
- Calum Lamont discussing conditions precedent and UCTA.
- Paul Walsh on the adoption of alliancing contracting.
- Geraldine Laing explaining direct payments to suppliers on a construction project.
Development news this month included a Parliamentary report on house building, a briefing paper on planning for NSIPs, a new BSI standard for carbon emissions, an updated VAT notice and James Audsley’s introduction to party wall issues.
In public procurement, Simon Taylor considered whether damages are an adequate remedy, Rebecca Haynes looked at abnormally low tenders, the ECJ ruled on requiring a contractor to directly perform a specified percentage of works and excluding bidders, and we published June’s case digest.
On a sporting note, Andy Murray won Wimbledon again, Portugal became European Champions for the first time, in the Tour de France, Chris Froome became the first English man to win three times and Mark Cavendish reached 30 stage wins (putting him second on the all-time stage winners list). England also continued to battle Pakistan in the cricket.
Twenty years ago this month the Construction Act 1996 received Royal Assent. It was the same month that Dolly the sheep was born in Scotland. However, the changes the Construction Act 1996 introduced to payment and adjudication did not apply to construction contracts entered into before 1 May 1998, when the payment and adjudication provisions of the Scheme for Construction Contracts 1998 came into force. Dolly lived until February 2003, whereas the Construction Act 1996 and the Scheme are still going strong.