‘Common sense prevails’ when work began before contract finalised – OUT-LAW.com

Posted October 23rd, 2018 in appeals, construction industry, contracting out, contracts, limitations, news by sally

‘The Court of Appeal has upheld a limitation of liability clause negotiated between the parties on a defective construction project, when work began before the parties formalised those terms.’

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OUT-LAW.com, 23rd October 2018

Source: www.out-law.com

Ointment for a sting: Arcadis Consulting v AMEC – Practical Law: Construction Blog

Posted October 15th, 2018 in appeals, construction industry, contracting out, contracts, limitations, news by tracey

‘The Court of Appeal has come to the aid of Arcadis Consulting (UK) Ltd by overturning Coulson J’s judgment in ​Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd – a case described by the judge as one “with something of a sting in its tail”. The sting in question was Coulson J’s finding that a contract between Arcadis and AMEC did not incorporate any term that limited Arcadis’ liability. As a result, Arcadis faced a potential loss of £40 million.’

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Practical Law: Construction Blog, 12th October 2018

Source: constructionblog.practicallaw.com

Construction and the Modern Slavery Act: Tackling exploitation in the UK – Home Office

Posted October 9th, 2018 in construction industry, reports, trafficking in human beings by tracey

‘This report examines the UK construction industry’s response to the Modern Slavery Act.’

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Home Office, 9th October 2018

Source: www.gov.uk/home-office

Combustible cladding ban set to be announced – BBC News

Posted October 1st, 2018 in construction industry, fire, health & safety, news by sally

‘Combustible cladding is to be banned for all new schools, hospitals, care homes, student accommodation and residential buildings in England above 18m (60ft).’

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BBC News, 30th September 2018

Source: www.bbc.co.uk

Arbitration clause “trumps” Part 8 application to overturn adjudicator’s decision – Practical Law: Construction Blog

Posted September 20th, 2018 in arbitration, construction industry, contracts, costs, news, stay of proceedings by tracey

‘When I was a kid, Top Trumps were all the rage. I know from my own boys that they still are. Back then, it was all about whether you had the fastest car or the most popular footballer (even Star Wars characters featured, but how did you decide if Hans Solo was better than Princess Leia?). Now, just about every topic is covered by a set of cards.
I mention this because a recent TCC judgment demonstrates that the arbitration clause in the JCT standard building contract can “trump” a Part 8 application for declaratory relief, with the court granting a stay of those Part 8 proceedings.’

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Practical Law: Construction Blog, 18th September 2018

Source: constructionblog.practicallaw.com

Risky business: Offshore drilling and using force majeure as an exit route – Practical Law: Construction Blog

Posted September 12th, 2018 in construction industry, contracts, news by tracey

‘A contract can be a long term commitment. Over the course of a contract, things happen. Circumstances change. Force majeure clauses generally allow parties to allocate contractual risk, by limiting liability, excusing performance or providing for termination, if unusual or unfortunate circumstances arise. However, the recent case of Seadrill v Tullow reminds us that it is not all that easy for a party to seek to avoid obligations it has freely undertaken.’

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Practical Law: Construction Blog, 10th September 2018

Source: constructionblog.practicallaw.com

Discontinuance, costs, and multiple Defendants: BAE Systems Pension Funds Trustees Ltd v Bowmer & Kirkland Ltd [2018] EWHC 1222 (TCC) – Zenith PI

Posted September 12th, 2018 in construction industry, contracts, costs, news, warehousing by tracey

‘This case is a reminder, if any were needed, of the difficulties facing Claimants in deciding whether or not to pursue multiple Defendants.’

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Zenith PI, 10th September 2018

Source: zenithpi.wordpress.com

Vinci v Beumer: the case that keeps on giving (and giving) – Practical Law: Construction Blog

Posted September 6th, 2018 in appeals, arbitration, construction industry, contracting out, contracts, news by tracey

‘It is the start of autumn and July seems a long way off now, with the summer holidays all over and the World Cup just a distant memory. Consequently, it may be easy to have forgotten about Vinci Construction UK Ltd v Beumer Group UK Ltd, which had its latest outing in the TCC at the end of that month. This time it was Jonathan Acton Davis QC (sitting as a deputy High Court judge) who enforced the adjudicator’s decision and dismissed Beumer’s (the sub-contractor) arguments that the adjudicator was in breach of the rules of natural justice.’

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Practical Law: Construction Blog, 4th September 2018

Source: constructionblog.practicallaw.com

Losing out on loss of bargain when terminating in reliance upon contractual rights – Hardwicke Chambers

Posted August 9th, 2018 in construction industry, contracts, insolvency, news by sally

‘In the wake of the Carillion insolvency, many sub-contractors are likely to be investigating their rights to terminate their contracts with a now defunct main contractor. Looking for a clean break, they may be tempted by the explicit termination rights that standard form building contracts often contain, and that may be deployed in the event of main contractor insolvency.’

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Hardwicke Chambers, 5th July 2018

Source: www.hardwicke.co.uk

The pitfalls of bespoke ADR clauses – Practical Law: Construction Blog

Posted August 8th, 2018 in construction industry, dispute resolution, news by tracey

‘For the first time in quite a while I am in the enviable position of having more than one adjudication enforcement case to choose to write about this week. In the end I plumped for Beach Homes v Hazell and Hazell as it raises some interesting points about bespoke dispute resolution clauses. It is a judgment of Mr Jonathan Acton Davis QC, one of the army of Deputy High Court judges currently sitting in the TCC.’

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Practical Law: Construction Blog, 7th August 2018

Source: constructionblog.practicallaw.com

What’s the damage? Revisiting the correct measure of loss in negligent surveyor cases – Practical Law: Construction Blog

Posted August 2nd, 2018 in construction industry, damages, negligence, news, surveyors by tracey

‘As construction lawyers, most of us have had experience with claims concerning the financial loss and/or damage to property arising from a negligent survey of a house.’

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Practical Law: Construction Blog, 1st August 2018

Source: constructionblog.practicallaw.com

What are you implying? The role of implied terms in contract interpretation – Practical Law: Construction Blog

Posted August 2nd, 2018 in construction industry, contracts, drafting, interpretation, news by tracey

‘Recent cases, including the Court of Appeal’s judgment in Bou-Simon v BGC Brokers LP and the (as yet unreported) case of Harrow LBC v Engie Regeneration (Apollo) Ltd (2018) (TCC), provide a useful reminder of the strict constraints on implying terms into a commercial contract.’

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Practical Law: Construction Blog, 1st August 2018

Source: constructionblog.practicallaw.com

Concurrent delay risk can be allocated by contract, confirms Court of Appeal – OUT-LAW.com

Posted August 1st, 2018 in construction industry, contracts, delay, news by sally

‘Parties to building contracts are free to agree on how to allocate the risk of concurrent delay to works, the Court of Appeal ruled on Monday.’

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OUT-LAW.com, 30th July 2018

Source: www.out-law.com

The reverse charge: shaking up VAT on construction services – Practical Law: Construction Blog

Posted July 13th, 2018 in construction industry, news, VAT by tracey

‘1 October 2019 will see a significant shake-up of the VAT rules in the construction sector. New rules will come into force on that date which will, in many cases, require the recipient of the supply of construction services, rather than the supplier, to account for VAT on the supply. Large and small businesses making standard-rated or reduced-rated supplies of construction services may be impacted. There may be cash flow implications, which could be positive or negative, for the businesses concerned.’

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Practical Law: Construction Blog, 11th July 2018

Source: constructionblog.practicallaw.com

Appeals on a point of law in arbitration and adjudication – Practical Law: Construction Blog

Posted July 11th, 2018 in construction industry, dispute resolution, news by tracey

‘One of the recurring themes on this blog is looking at what happens in arbitration and drawing parallels with what happens in adjudication. It is something that really interests me as I act as both adjudicator and arbitrator. This week is no different and I am looking at the judgment in Fehn Schiffahrts GmbH & Co KG v Romani SPA, where the Commercial Court allowed an appeal on a point of law under section 69 of the Arbitration Act 1996 and remitted the award back to the three-person tribunal.’

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Practical Law: Construction Blog, 10th July 2018

Source: constructionblog.practicallaw.com

Losing out on loss of bargain when terminating in reliance upon contractual rights – Practical Law: Construction Blog

‘In the wake of the Carillion insolvency, many sub-contractors are likely to be investigating their rights to terminate their contracts with a now defunct main contractor. Looking for a clean break, they may be tempted by the explicit termination rights that standard form building contracts often contain, and that may be deployed in the event of main contractor insolvency. On the surface, terminating appears as simple as writing to the liquidator citing the relevant provision, and declaring the contract to be at an end. However, a potential trap awaits the unwary. Unwitting sub-contractors may inadvertently forfeit any right to claim loss of bargain damages, that is, the loss of profits that would have been made had the contract carried through to completion. This is potentially a highly lucrative right, particularly if the sub-contractor is at the start of a multi-year project that was expected to generate significant future earnings. This result arises from the case of Phones 4U Ltd (in administration) v EE Ltd.’

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Practical Law: Construction Blog, 4th July 2018

Source: constructionblog.practicallaw.com

Determination of preliminary points of law by courts in arbitration and adjudication – Practical Law: Construction Blog

Posted June 5th, 2018 in arbitration, construction industry, news, ships by tracey

‘The Palladium is a mighty fine looking “superyacht”. It is an impressive 95 metres long and has all the features one would expect on such a luxury craft, including a helicopter landing pad and swimming pool. A Google search suggests that the yacht is worth circa $200 million, so one can see that a defect in the paint finish would be costly to rectify. It is this defect that ultimately led the parties to an arbitration, for which a five-week hearing was set.

The case ended up before the court because, during the arbitration, an issue arose as to whether the yacht builder’s without prejudice settlement offer had been accepted by the purchaser in correspondence. The purchaser contended that a binding settlement had been reached, which the builder denied.’

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Practical Law: Construction Blog, 29th May 2018

Source: constructionblog.practicallaw.com

Nearly, but not quite: the difficulties of resisting payment of an on-demand guarantee – Practical Law: Construction Blog

Posted May 17th, 2018 in banking, construction industry, fraud, guarantees, news by tracey

‘It is notoriously difficult to resist payment following a call on an on-demand guarantee or bond. Generally, nothing less than a seriously arguable case of fraud by the beneficiary will suffice. The stringency of this test is backed by strong policy arguments militating in favour of protecting the integrity of the banking system. However, even where a seriously arguable case of fraud is made out, the balance of convenience may weigh against injunctive relief, as demonstrated recently in Tetronics (International) Ltd v HSBC Bank plc.’

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Practical Law: Construction Blog, 16th May 2018

Source: constructionblog.practicallaw.com

Retention proposals take shape: analysing the text of the Aldous Bill – Practical Law: Construction Blog

Posted May 16th, 2018 in bills, construction industry, contracts, deposits, news by tracey

‘For many years, parts of the construction sector have pushed for improvement of the market’s treatment of retention monies. Post-Carillion and its devastating impact on suppliers, however, matters may have reached a tipping point. On 9 January 2018 – a few days before the construction giant’s collapse – the backbencher Peter Aldous introduced the Construction (Retention Deposit Schemes) Bill under Parliament’s Ten Minute Rule. Given the importance of government support in mustering a majority in the House of Commons, relatively few Private Members’ Bills (PMB) become law. To this end, proponents of the “Aldous Bill”, not least the Waveney MP himself, have been busily promoting its merits within the industry and rallying support among politicians ahead of it being debated by MPs at the second reading.’

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Practical Law: Construction Blog, 15th May 2018

Source: constructionblog.practicallaw.com

20 years of statutory adjudication – Practical Law: Construction Blog

Posted May 16th, 2018 in construction industry, dispute resolution, enforcement, news by tracey

‘The Construction Act 1996 turned 20 this month, which means that for the last 20 years the UK’s construction industry has been subject to its statutory adjudication and payment rules. I was just a couple of years out of university 20 years ago, so I’ve never really known a world without these things (something that Lucy Garrett QC noted in her video for Practical Law). I remember doing presentations to clients in the months leading up to May 1998 on the implications of the Act and, in particular, the payment and withholding notices regimes. It seems a long time ago now! Looking back, a lot has happened since May 1998 and I thought that I would highlight just a few aspects of adjudication. Given the volume of case law and the limited space I have here, this is by no means a comprehensive review.’

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Practical Law: Construction Blog, 15th May 2018

Source: constructionblog.practicallaw.com