REUTERS | Mike Blake

September 2013 digest: it was all about collateral warranties

Jennifer Hanson, Collateral Damage:

“The sweet September rain chased away the sun
Darkened up my skies as sorrow sweetly hung.”

As autumn approaches, so does the start of the Michaelmas court term. While the majority of court users may have been enjoying the summer recess (and the end of  a wonderful summer), a small team went before Akenhead J on a CPR Part 8 application to ask whether a collateral warranty was a construction contract. If it was, they could adjudicate their dispute. To the surprise of many, the court said yes. James Ladner told you about the judgment, John Hughes D’Aeth explained why he thinks the judgment is wrong and Matt Molloy discussed its implications for adjudicators and adjudication. We anticipate that many more column inches will be devoted to this judgment over the coming months.

Parkwood v Laing O’Rourke was not the only judgment published during the summer recess. The courts also considered whether:

  • An adjudicator breached the rules of natural justice (he didn’t), which Jonathan Cope considered.
  • The name of a contracting party could be corrected under the principle of misnomer (it couldn’t).
  • In Scotland, “balancing accounts” was a defence to adjudication enforcement proceedings (it was).
  • A homeowner could be liable for damage caused by tree roots on her property (she could), which Muhammed Haque discussed.

Sally Kerridge provided an insight into what it is like to spend a week shadowing TCC judges on the TeCSA marshalling scheme and, by reference to two recent cases, Elizabeth Repper illustrated the importance of knowing early all the terms required to make a settlement work.

In adjudication, Matt Molloy looked at bias and Jonathan Cope explained how adjudicators are dealing with the amended payment rules under the Construction Act 1996.

The construction industry is often in the news. This month it was blacklisting in Wales, the strategic road network and sustainable development, more support for self-builders and the Armitt review of infrastructure. Further afield, the Council of the European Union published three draft public procurement directives (which will, eventually, replace the existing public procurement regime).

Finally, we have published a number of new items that may be of interest, including a podcast on why construction law matters when you are negotiating a development agreement, a note on interest for late payments, a note on the tax treatment of property holding structures and a note on planning permissions. We also told you about domestic and international arbitration materials and that, in conjunction with Berwin Leighton Paisner, we have revised our note on early neutral evaluation (ENE).

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