REUTERS | Michaela Rehle

November 2016 digest: Ch-ch-changes

David Bowie, Changes:

“I watch the ripples change their size
But never leave the stream
Of warm impermanence and
So the days float through my eyes”

The government’s appeal to the Supreme Court on Article 50 will not be heard until next month (and the outcome may not be known until early next year), and so it is pure speculation whether the 11 Law Lords will uphold the High Court’s decision, or decide something else. Either way, Brexit has caused a constitutional debate the like of which the country has not seen before, at least not in modern times.

While that outcome remains unknown, after the Autumn Statement, we know what the government’s plans are in the short term. It looks like it will be business as usual for the construction industry, with some big promises on infrastructure and housing spending but little of the detail (although separately, we heard about HS2’s route and the Cambridge/Milten Keynes/Oxford corridor).

Change is still afoot at the JCT, with the launch of its 2016 suite of collateral warranties. We published a note on the changes to the SBC 2016 (which came out last month) and Peter Brogden highlighted some of the key differences with the 2011 editions. We also told you the NEC has published guidance on alliancing on NEC3 projects.

Changes in construction litigation are rare, so imagine our excitement this month when a new edition of the pre-action protocol came into force. Whatever your views are on the new opt out provision, the simplified requirements for letters of claim and response, and the new referee procedure, you can read what Caroline Pope, Michael Mendelblat and Paul Reed QC all think.

In adjudication, the TCC continued to enforce adjudicators’ decisions, with Jefford J rejecting a jurisdictional challenge and Stuart-Smith J refusing to order a stay or payment into court (which Jonathan Cope commented on). Matt Molloy looked at serial adjudication and the new adjudication regime in Ireland, and Rachel O’Hagan discussed recovering adjudication costs following Coulson J’s finding that a party’s Part 36 offer did not include the costs of adjudication.

The TCC was also busy considering an expert’s determination (which Jonathan Cope discussed), whether a party had entered into a simple contract based on a letter of intent, the approach to proportionality under CPR 44.2 and a highways maintenance contractor’s payment claim.

The Court of Appeal upheld a decision that an employer could not recover overpayments, considered the interpretation presumption about giving up rights, looked at the “normal” measure of damages and held that an implied term could not fill a gap in an incomplete contract.

On the comment front, Jonathan Cope also looked at adjudicating valuation disputes after Kilker v Purton, Michael Tetstall considered letters of intent after Spartafield v Penten, Paul Fisher discussed good faith in contracts in the Middle East, Geraldine Laing highlighted some issues when negotiating collateral warranties and Christopher Skone James noted the complexities of a professional appointment for artwork.

Party wall issues seemed to be a bit like buses this month, with Charlie Thompson discussing using the TCC’s adjudication enforcement procedure to enforce a party wall award, and Crispin Winser telling you about the Court of Appeal’s judgment in Gray v Elite Town Management Ltd.

Finally, in public procurement news, an automatic suspension was lifted, a council was not required to allow a tender to be corrected, the CCS published guidance on social and environment issues and we published a 6-month procurement policy review.

Practical Law Monthly digest

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