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November 2013 digest: adjudication, insolvency and “plebgate”

John Clare, Autumn:

“The summer-flower has run to seed, and yellow is the woodland bough;
And every leaf of bush and weed is tipt with autumn’s pencil now.”

Weather-wise, November has seemed milder and calmer than normal. We may have had a bit of wet and windy weather at the start of the month, with some cold days and a scattering of snow to higher ground more recently, but winter certainly hasn’t got us in her grip yet. If there is a storm coming, it hasn’t arrived.

However, a storm is certainly brewing in the cauldron of civil litigation. Ever since the Jackson reforms came into effect in April, we have seen judges grappling with the new rules on case and costs management, relief from sanctions and proportionality. Some parties have fared better than others. Andrew Mitchell MP hit the headlines (for a second time) when Master McCloud ruled that in his libel action over “plebgate”, he would only be able to recover his court fees due to a failure to file a costs budget on time. No doubt many were thinking, “there but for the grace of God go I”.

This month, Lord Dyson in the Court of Appeal upheld Master McCloud’s judgment and set out guidelines for how the courts will deal with applications for relief from sanctions. Roger Mallalieu discussed these issues, highlighting that such relief will only be granted in exceptional circumstances. Parties have been warned that they must comply with rules, directions and orders; being busy is simply not an excuse. Interesting times certainly lie ahead for litigators and their clients.

Even before Lord Dyson’s ruling, James Bickford Smith considered some of the practical implications of the new costs provisions. We also heard that the TCC will adopt a new e-disclosure protocol from January 2014, which Caroline Pope discussed. Elsewhere, the courts highlighted the dangers of settling with only some of several joint tortfeasors, looked at whether a planning authority could decide that structural damage concerns were properly addressed by building regulations and party wall legislation, considered the scope of a funder’s liability to a building contractor, construed a time-bar clause and considered the meaning of service of legal proceedings, and refused to order specific disclosure. Matt Molloy highlighted the importance of instructing appropriately qualified experts.

Insolvency issues have featured prominantly in adjudication enforcement this month, with the TCC considering the impact of the defendant’s claim in the claimant’s CVA on adjudication enforcement (summary judgment was refused) and the claimant going into members’ voluntary liquidation (MVL) (a partial stay of execution was ordered). In Scotland, Lord Malcolm held that the principle of “balancing accounts” in insolvency was a defence to the enforcement of an adjudicator’s decision, but there had to be more than a balance sheet deficiency.

With regard to adjudicators’ breaches of the rules of natural justice, Edwards-Stuart J held (again) that an adjudicator was not in material breach (which Matt Molloy considered) and Lynne McCafferty discussed the impact it has on adjudicators’ behaviour. We also reminded you about Lynne’s adjudication case study, which has been updated and rewritten to complement Melissa Moriaty’s adjudication standard documents. Jonathan Cope discussed waiver of jurisdictional challenges and Alasdair Blackshaw looked at whether a third party to a construction contract can adjudicate a dispute under that contract.

On the ADR front, Elizabeth Repper considered the extension of the Halsey principles in mediation and Jonathan Cope looked at the CIArb dispute board rules consultation. Other issues in the news included a hybrid Bill and Preparation Act for HS2, an end to site waste management plans, a draft BIM PAS 1192-3, amendments to Part L of the Building Regulations, a new RICS Red Book, further planning guidance for NSIPs and Iain Suttie explained all about provisional sums.

Finally, November was a quieter month for public procurement than of late, with October’s case digest, a public policy review and news that the modernisation of the EU procurement rules has been delayed until 2014.

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