Final account payments: welcome guidance from the TCC – Practical Law: Construction Blog

Posted December 21st, 2017 in construction industry, contracting out, contracts, news, remuneration by tracey

‘Nearly 20 years after the Construction Act 1996 was introduced to stamp out bad payment practices, you would be forgiven for thinking there must be a voluminous pile of case law in relation to the all-important final account. But you would be disappointed. While there is plenty of guidance from the TCC on interim payments, the courts have not had much to say about final accounts, particularly post 2011. This is why Systems Pipework Ltd v Rotary Building Services Ltd is so welcome. Coulson J draws together the authorities on interim and final account payments and concludes (in a characteristically clear and to the point judgment) that the same rules apply to both.’

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Practical Law: Construction Blog, 20th December 2017

Source: constructionblog.practicallaw.com

Bring it on… bring it all on! The risky strategy of leaving over arguments for another day in serial adjudications – Practical Law: Construction Blog

Posted December 20th, 2017 in construction industry, contracts, damages, dispute resolution, news, time limits by tracey

‘One of the fears relating to adjudication is that a referring party will attempt to achieve success by grinding the responding party down through serial adjudications until it achieves the result it wants or the responding party gives in. In Benfield Construction Ltd v Trudson (Hatton) Ltd, Coulson J issued a clear warning that such an approach would not be condoned, stating.’

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Practical Law: Construction Blog, 20th December 2017

Source: constructionblog.practicallaw.com

When silence is deafening: adverse inferences in relation to absent witnesses – Hardwicke Chambers

Posted December 8th, 2017 in construction industry, news, witnesses by sally

‘Staff turnover in the construction industry can be particularly high and finding the right person to give evidence on all issues in a case can sometimes be difficult. Parties are often suspicious when they know there is someone who should be able to give evidence for their opponent, but whom their opponent does not plan to call. There is an obvious risk in a party calling that witness when there has been a seemingly positive pre-existing relationship with the opposing party. Consequently, it is more common for a party to invite the court to draw an adverse inference where a witness should have been called to give evidence, but is absent from the proceedings.’

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Hardwicke Chambers, 22nd November 2017

Source: www.hardwicke.co.uk

Speech by Lord Justice Jackson: Does good faith have any role in construction contracts? – Courts and Tribunals Judiciary

Posted December 1st, 2017 in construction industry, contracts, speeches by tracey

‘Speech by Lord Justice Jackson: Does good faith have any role in construction contracts?’

Full speech

Courts and Tribunals Judiciary, 29th November 2017

Source: www.judiciary.gov.uk

Returning to the new Pre-Action Protocol for Construction and Engineering Disputes – Hardwicke Chambers

Posted November 24th, 2017 in construction industry, news, pre-action conduct by sally

‘Construction analysis: One year after the second edition of the Pre-Action Protocol for Construction and Engineering Disputes (the Protocol) came into force, David Pliener looks at how it has been used in practice. He notes that while it has generally been well-received, the Protocol’s full impact has not been felt yet, and there are still areas where uptake has been slow. Nevertheless, over the past year, indications point to the overall success of the new regime.’

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Hardwicke Chambers, 3rd November 2017

Source: www.hardwicke.co.uk

It’s all a matter of Interpretation – Hardwicke Chambers

Posted November 23rd, 2017 in construction industry, contracts, drafting, interpretation, news by sally

‘It is often the case that, when parties negotiate the parties’ rights to terminate a contract on particular terms, one party will often wish to have an opportunity to rectify any potential termination default that they have committed, whereas the other will wish to retain the discretion to determine when a contract will come to an end in the event of a termination event. The issue in the case was essentially about contractual interpretation, and a conflict within a termination clause which meant either the main contractor was entitled to serve a termination notice immediately on its subcontractor, or that there was a requirement that the main contractor provide an opportunity to the subcontractor to remedy the default before serving a termination notice.’

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Hardwicke Chambers, 16th November 2017

Source: www.hardwicke.co.uk

Contributory negligence and construction contracts – Hardwicke Chambers

‘A plethora of issues were raised, and disposed of, by Fraser J’s recently handed-down judgment in Riva Properties and others v Foster + Partners Ltd, the most awkwardly entertaining one being the sense of pantomime arising from the court’s clear disapproval of the architect’s behaviour, which was described at various stages as “grubby”, “disingenuous” and “wholly unprofessional”.’

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Hardwicke Chambers, 10th November 2017

Source: www.hardwicke.co.uk

A cautionary tale on the importance of client service – Practical Law: Construction Blog

Posted November 16th, 2017 in budgets, construction industry, news by tracey

‘The recent decision in Riva Properties Ltd v Foster + Partners Ltd, considers the duties that an architect owes to its client, specifically in the context of working in accordance with the client’s budget. Helena White and Matt Malloy have recently written about issues of contributory negligence and evidence arising out of the case. One of the most interesting aspects of the decision for me is that, over the course of a searing 313 paragraph judgment, Fraser J delivers a forceful reminder that client service is at the heart of the construction industry. Although the case specifically concerns the provision of architectural design services, it is a cautionary tale of the consequences of failing to put clients’ objectives first, which is just as relevant to lawyers, professional advisers of any specialism and indeed to all parties involved in the delivery of construction projects.’

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Practical Law: Construction Blog, 15th November 2017

Source: constructionblog.practicallaw.com

Condition precedents and the rule against redundancy in contract interpretation – Practical Law: Construction Blog

Posted November 15th, 2017 in construction industry, contracts, interpretation, news, rectification by tracey

‘In Interserve Construction Ltd v Hitachi Zosen Inova AG, the court was asked to interpret the termination provisions of a contract to determine whether there was a condition precedent clause.’

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Practical Law: Construction Blog, 15th November 2017

Source: constructionblog.practicallaw.com

How testing the evidence differs in adjudication and court – Practical Law: Construction Blog

Posted November 15th, 2017 in construction industry, contracts, dispute resolution, evidence, negligence, news by tracey

‘When I read Fraser J’s judgment in Riva Properties Ltd v Foster + Partners Ltd, the thing that struck me was how, in adjudication, we don’t always get the benefit of seeing the evidence tested to the same degree as you do in court or arbitration proceedings.’

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Practical Law: Construction Blog, 14th November 2017

Source: constructionblog.practicallaw.com

2011 amendments to Construction Act 1996 are under review – Practical Law: Construction Blog

Posted November 7th, 2017 in construction industry, consultations, news by tracey

‘On 1 May 2018 it will be 20 years since the Construction Act 1996 came into force. I think it is fair to say that, despite initial reservations by some about its introduction, most people would agree that, overall, the statutory adjudication and payment provisions have been successful. That said, like any adolescent, its teenage years have been somewhat difficult, which is mainly down to the 2011 amendments (introduced by Part 8 of the LDEDC Act 2009) to both the Act and the Scheme for Construction Contracts 1998.

Therefore, I was delighted to receive an email from a friend a couple of weeks ago letting me know that the Department for Business, Energy & Industrial Strategy (BEIS) had published a consultation on the 2011 amendments. The consultation can be accessed here and you have until 19 January 2018 to submit your thoughts.

Not only that, but the government has also published a consultation on the practice of cash retention under construction contracts (with the same January deadline). Although it is a very relevant and worthwhile consultation, it is the consultation on the 2011 amendments that I want to focus on today.’

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Practical Law: Construction Blog, 7th November 2017

Source: constructionblog.practicallaw.com

Court of Appeal confirms meaning of section 111 of Construction Act 1996 – Practical Law: Construction Blog

Posted November 3rd, 2017 in construction industry, contracts, news by tracey

‘In Adam Architecture Ltd v Halsbury Homes Ltd [2017] EWCA Civ 1735, the Court of Appeal has confirmed that section 111 of the Construction Act 1996 (and the requirement to serve pay less notices) applies to payments due following completion or termination of a contract, as well as interim payments.’

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Practical Law: Construction Blog, 2nd November 2017

Source: constructionblog.practicallaw.com

Construction: Adjudication – unilateral withdrawal – Law Society’s Gazette

Posted October 23rd, 2017 in arbitration, construction industry, dispute resolution, news by sally

‘Introduced by the Housing Grants Construction and Regeneration Act 1996, the statutory adjudication scheme is a well-established dispute resolution mechanism within the UK construction industry. The scheme is often referred to as a ‘pay now, argue later’ mechanism which seeks to maintain cashflow during construction projects by providing a cost-effective and swift means of determining disputes. Although an adjudication award is binding, it is not final. However, in practice an adjudication award is often the final resolution of a dispute.’

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Law Society's Gazette, 23rd October 2017

Source: www.lawgazette.co.uk

The shifting sands of risk management in construction projects – Hardwicke Chambers

Posted October 20th, 2017 in construction industry, delay, insurance, news by sally

‘Construction and engineering projects, whether land-based or marine, are inherently risky. For this reason, parties to construction and engineering contracts manage risk by seeking to allocate responsibility for each different type of risk to a particular party.’

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Hardwicke Chambers, 20th October 2017

Source: www.hardwicke.co.uk

Ignore the procurement dispute timetable at your peril – Practical Law: Construction Blog

‘The parties to procurement challenges are required to act quickly and in accordance with a strict timetable. When a losing bidder issues a claim, it must serve the claim form on the defendant within seven days after the date of issue. Pursuant to CPR 7.4(2), the particulars of claim are to be served no later than the latest time for serving the claim form. That is, they must also be served within seven days after the date of issue.’

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Practical Law: Construction Blog, 18th October 2017

Source: constructionblog.practicallaw.com

Can a party withdraw from adjudication part way through and what are the implications? – Practical Law: Construction Blog

Posted October 17th, 2017 in construction industry, costs, dispute resolution, news, wasted costs orders by tracey

‘Jacobs UK Ltd v Skanska Construction UK Ltd was a dispute all about the adequacy of Jacobs’ design services, which related to street lighting in Lewisham and Croydon. It highlights some interesting issues related to whether a party is entitled to withdraw from an adjudication and then start again.’

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Practical Law: Construction Blog , 17th October 2017

Source: constructionblog.practicallaw.com

“Ingenious arguments” fail to topple “smash and grab” award – Practical Law: Construction Blog

Posted October 6th, 2017 in construction industry, contracts, dispute resolution, enforcement, news by tracey

‘It’s been a while since I’ve blogged about a payment notice case, and so the case of Jonjohnson Construction Ltd v Eagle Building Services Ltd caught my eye.’

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Practical Law: Construction Blog, 3rd October 2017

Source: constructionblog.practicallaw.com

Who knows where the time goes? – Practical Law: Construction Blog

Posted October 5th, 2017 in construction industry, contracting out, contracts, damages, delay, news, time limits by tracey

‘Einstein famously said that the distinction between past, present and future is only a stubbornly persistent illusion. The nature of time is not an easy concept to grapple with and I had a similar (albeit not quite so ethereal) experience preparing a recent seminar on the practical effect of the decision in Carillion Construction v Emcor Engineering Services relating to contiguous (or rather non-contiguous) extensions of time.’

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Practical Law: Construction Blog, 2nd October 2017

Source: constructionblog.practicallaw.com

July to September 2017 case review for construction practitioners – Practical Law: Construction Blog

Posted October 5th, 2017 in arbitration, construction industry, contracts, negligence, news by tracey

‘A selection of the more interesting decisions affecting construction and engineering practitioners during the third quarter of 2017.’

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Practical Law: Construction Blog, 2nd October 2017

Source: constructionblog.practicallaw.com

High Court enforces contractual provision allocating responsibility for concurrent delay to contractor – OUT-LAW.com

Posted October 4th, 2017 in construction industry, contracts, delay, news by sally

‘The High Court has found that a clause in a construction contract which allocates the risk of concurrent delays to the contractor is valid and enforceable.’

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OUT-LAW.com, 3rd October 2017

Source: www.out-law.com