In this fifth edition of 'Adjudication watch', Wragge & Co's construction experts review cases involving challenges to adjudication enforcement on jurisdictional and natural justice grounds.
Those drafting commercial contracts, especially contracts that are complex and set out in different schedules or documents, will often use 'order of precedence' clauses to help resolve any disputes surrounding the interpretation of conflicting provisions.
In the case of Hillcrest Homes Limited v Beresford and Curbishley Limited (Feb 2014) the Technology and Construction Court (TCC) decided that claims that had been advanced in negligent misstatement and misrepresentation could not be adjudicated.
What is the status of an adjudicator's decision, in the period following the decision but before a judgment by a court or an award by an arbitrator?
Earlier this year, Wragge & Co's construction experts reported on the decision in Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc  EWHC 1322 (TCC). The decision raised an interesting and important question.
In this fourth edition of 'Adjudication watch', Wragge & Co's construction experts review cases involving challenges to adjudication enforcement on jurisdictional and natural justice grounds.
Our two part series considered the case of National Museums and Galleries on Merseyside (Trustees of) v AEW Architects and Designers Limited and another - an interesting decision on various levels.
Over the past year, several bodies have begun to translate the theory around BIM into practical resources for those encountering it, in some cases for the first time.
The case of National Museums and Galleries on Merseyside (Trustees of) v AEW Architects and Designers Ltd and another in the Technology and Construction Court raised a catalogue of issues which provides food for thought for everyone in the construction industry.
The case of National Museums and Galleries on Merseyside (Trustees of) v AEW Architects and Designers Ltd and another in the Technology and Construction Court raised a catalogue of issues which provide food for thought for everyone in the construction industry.
Yes, in theory you can. In a judgment dated 29 August 2013, Parkwood Leisure Ltd v Laing O'Rourke Wales and West Ltd, the Technology and Construction Court has confirmed that collateral warranties are not out of bounds when it comes to adjudication.
You may have already seen the Government's August 2013 construction pipeline - if not, it's worth a look.
In this third edition of 'Adjudication watch', we review cases involving challenges to enforcement on jurisdictional and natural justice grounds.
From 1 July 2013, there will be a significant change in the regulation of the market for construction products throughout Europe.
On 1 October 2012, the Health and Safety Executive's (HSE) Fee for Intervention scheme came into force in the United Kingdom.
Hunt & Others v Optima (Cambridge) Ltd & Others is an interesting and complex decision from the Technology and Construction Court involving the development of a block of flats which went wrong from the beginning.
In Morris Homes (West Midlands) Ltd v Keay & Another, the Technology and Construction Court (TCC) considered a developer's obligations in an agreement for lease. Wragge & Co's engineering and construction experts examine the decision in more detail.
Following a breach of contract, the innocent party will want to recover all of its loss - why should it be otherwise? The reality is that an innocent party will not be entitled to losses which are too remote.
In this fourth and final part of our alert series on key litigation risks for construction businesses, we consider the effect of the "Jackson reforms" on the funding of personal injury claims which will come into effect on 1 April 2013.
In this second edition of 'Adjudication watch', we summarise three recent adjudication decisions - all of which involve successive adjudications. This leads us to another related hot topic should the same adjudicator be appointed in successive adjudications?
From 1 October 2012, a new legal requirement on employers to automatically enrol eligible workers into a pension scheme that meets minimum quality standards started to be rolled out. The new employer duties apply to larger employers first, with smaller employers to follow.
In this, the second in a four-part series of alerts on key litigation risk areas for construction businesses, we look at the impact of the Agency Workers Regulations more than a year on from their introduction.
The Construction Industry isn't simply about building, bricks and mortar, pricing and procurement. Behind every business is a workforce with an ever-increasing range of workplace rights.
2012 brought us celebrations and excitement in the form of the Jubilee, Olympics and Paralympics. Now that the whirlwind of activity has calmed down, it's time to take stock of what else 2012 had to offer.
On 13 December 2012, the Ministry of Justice published a consultation proposing measures to reform the procedure for judicial reviews. The rationale behind the reform is to halt the increasing number of applications for judicial review which have risen from 160 in 1974 to 11,200 in 2011.
In June 2005, a factory owned by Trebor and used by Cadbury for producing popcorn was destroyed by a fire. Trebor and Cadbury sued ADT Fire and Security, which had designed, supplied and installed the factory's fire suppression system, to recover their losses.
The Government's ambition is to use Building Information Modelling (BIM) on all public sector projects. Increasing numbers of private clients are also becoming involved in industry-specific BIM forums. What does this mean for those charged with implementing or working on a 'BIM -enabled' project?
In JB Leadbitter & Co Ltd v Hygrove Holdings Ltd the Technology and Construction Court found a payment clause in an escrow agreement to be ineffective because it was a pay-when-paid clause.
A decision from the Technology and Construction Court (TCC) has confirmed that advice given by claims consultants to their clients is not covered by legal advice privilege even if the advice is provided by solicitors or barristers engaged by those claims consultants.
Now the second largest economy in the world and with its sights on the top spot, China's booming market is rich in opportunities for foreign companies. With western economies still feeling the impact of the downturn, it is becoming an increasingly attractive destination for investors.
The Government has published its response to its consultation on 'Solving disputes in the county courts' (March 2011), setting out the proposals it intends to take forward.
You receive an offer to mediate. What should you do? Should you accept, sit tight and say nothing, perhaps on the basis that you cannot be wrong in saying nothing, or refuse and if so, with or without reasons?
In Leander Construction Limited v Mulalley and Company Limited (2011), the Technology and Construction Court declined to imply a term into a sub-contract obliging the sub-contractor to proceed with its works regularly and diligently.
The Löfstedt Report on health and safety legislation was issued yesterday, along with the Government's response to it.
Could you be held liable for the fraudulent actions of another? If you are an employer and one of your employees is involved in fraudulent activities, then yes.
The Government has published its eagerly awaited Housing Strategy in order to inject some much needed momentum into the housing market and boost the economy.
The Technology and Construction Court (TCC) has consistently demonstrated in a string of cases its unwillingness to overturn adjudicators' decisions.
What happens if one party to a contract fails to perform? Can the innocent party get all of its losses back? What happens if the losses are difficult to prove?
Contracting parties are required to keep their bargains. The fact that performance subsequently becomes more difficult or less profitable does not excuse them from liability.
What's the first thing lawyers turn to when reviewing a commercial contract, and invariably one of the last issues to get resolved? The exclusion of liability clause.
'Fitness for purpose' and 'satisfactory quality': deceptively problematic concepts which are frequently encountered in the construction industry. How do implied terms under the Sale of Goods Act impact on construction contracts? What are the consequences of not having a written contract?
In this, the 12th and final part of our series, we examine the basics and key issues surrounding Practical Completion.
The Technology & Construction Court has made its decision in Jerram Falkus Construction Ltd v Fenice Investments Inc [No 4]. The judgment provides useful guidance on conclusivity provisions in construction contracts relating to final accounts, final statements and adjudicators' decisions.
The amendments to the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act) are due to come into force on 1 October 2011 in England and Wales and 1 November 2011 in Scotland.
Insurance issues in construction and engineering contracts are often left to the last minute, but they can be a minefield. What insurances are relevant to construction and engineering projects, and what issues do you need to consider when negotiating insurance provisions?
Faced with a defect in a building the owner will have to consider various issues. What is the cause of the defect? How should it be remedied? Who should remedy the defect and who might be responsible for the costs? Can recovery be made either in contract or in tort?
Working at height continues to be a top priority for the Health & Safety Executive (HSE) and falls from height remain a major problem. In 2008/2009 more than 4,000 employees (including in the construction industry) suffered a major injury as a result of a fall from height.
There are very few construction disputes where delay is not an issue. The process of establishing entitlement to an extension of time can be both time-consuming and costly.
When considering a contractor's primary obligations, attention often turns to those requirements relating to the required standard of the works and to the time within which they must be completed. Often overlooked, however, is a contractor's obligation to carry out and complete the works.
Identifying a contractor's design obligations is one of the most important issues in negotiating a contract.
It may be difficult, in the optimism at the start of a construction project, to consider what you are going to do if things go wrong. Often the first time parties even look at the dispute resolution clause is when the relationship has deteriorated beyond repair.
When assessing risks associated with fire, the immediate concern is often the potential loss of life. Corporate manslaughter or gross negligence manslaughter charges can follow if death occurs due to corporate or individual gross negligence.
The long wait is over. After lengthy consultation and debate, the Statutory Instrument confirming the implementation date of Part 8 of the Local Democracy, Economic Development and Construction Act 2009 has now been published.
There are many clauses in a construction contract that, at first glance, appear to be straightforward. However, they may in fact have unforeseen effects on the obligations and liabilities of the contracting parties.
One of the key advantages of resolving an international dispute through arbitration, rather than court proceedings, is that it is often easier and quicker to enforce an arbitral award than a court judgment.
Despite all the warnings about the risks associated with letters of intent (LOI), there is a time and place for them to be used on construction projects.
In today's competitive construction industry, forewarned is forearmed. By considering and preparing for the legal issues which can arise during a typical construction project, your business will be better equipped to save time and money.
In this, the third part of our mini series on international arbitration, we look at when parties might issue proceedings in their home courts, and what the options are if they do.
Parties agree to use arbitration as their chosen method of dispute resolution either by an arbitration agreement in relation to future disputes or by a submission agreement once a dispute has arisen.
Making an offer of settlement under Part 36 of the Civil Procedure Rules (Part 36) is one of the most crucial tactical steps in litigation.
One of the most groundbreaking recommendations in Jackson LJ's final report on litigation costs is the introduction of contingency fees.
For claimants that cannot afford to pursue a valid claim or have the resources but simply want to avoid the cash flow and/or costs risk of funding a piece of litigation, third party funding may be a viable option.
The use of conditional fee agreements (CFAs) and after the event (ATE) insurance enables litigants to bring claims which they may otherwise be unable, or unwilling, to pay for.
After two months of speculation covering thousands of column inches, the Ministry of Justice has finally published its guidance under section 9 of the Bribery Act 2010.
Some 14 months after the publication of Lord Justice Jackson's Civil Litigation Costs Review, the Lord Chancellor and Secretary of State for Justice, the Rt Hon Kenneth Clarke QC MP, yesterday presented the Government's response as to how it would implement his recommendations.
Following an announcement from the Health and Safety Executive (HSE), starting today - for the next month - the HSE will be carrying out unannounced visits to construction sites across the country.
The Court of Appeal has confirmed that a builder or seller of a building does not, because of the existence a contract, assume any liability in tort for defects in the building which result in pure economic loss.
Dealing with the impact of the Bribery Act is high on the agenda of many organisations. The Act was due to come into force in April 2011. However, we understand that the Ministry of Justice has now confirmed that implementation of the Act will be delayed.
The Linklaters Business Services v Sir Robert McAlpine trial has now taken place. Wragge & Co's experts examine the decision.
It is commonly thought that the words "without prejudice" mean exactly that - litigants can write or say what they like, safe in the knowledge that such information will never be put before a judge (and in effect used against them). Think again!
Disclosure is an integral and essential part of the litigation process and in turn electronic disclosure is of growing importance within that disclosure process.
Suppliers of goods often get a rough deal when their customers become insolvent because they are unsecured creditors. Retention of Title (RoT) clauses can provide some protection to suppliers.
The provisions of the Bribery Act come into force in April 2011. Organisations which fail to implement a programme to prevent bribery could be hit with an unlimited fine and serious reputational damage.
Obligations of confidence arise because of the relationships between parties (e.g. between MI5 and a field operative), or because of the circumstances of disclosure (e.g. an inventor revealing the secret designs of a new product to an investor or two parties collaborating in a joint venture).
A condition precedent is a clause in a contract that provides that the contract, or certain obligations in the contract, will only be enforceable if and when certain conditions are met.
Part 36 offers are one of the most important tactical steps which parties (claimant or defendant) can take during a dispute. They provide a means of putting pressure on an opponent to settle a case or face potential costs and interest consequences.
Failure to make settlement offers or negotiate with an opponent at an appropriate time in the proceedings can lead to the defaulting party being penalised in costs.
Can a subcontractor or supplier employed to carry out works or supply goods to a contractor in relation to a construction project, owe a duty of care and be liable for the damage caused to the building by its defective works to anyone other than its employer?
With cuts to public spending high on the current political agenda, the focus on litigation issues for local authority in-house lawyers increases too.
When you bid for a public contract, what can you do if the rules have been breached?
In any litigation, considering offers of settlement is crucial. If you make an offer under part 36 of the Civil Procedure Rules and your opponent does not accept it but then fails to obtain a more (or equally) advantageous outcome at trial, you are likely to be awarded your costs.
Directors of construction companies should take note that the current Government has accepted several recommendations in Rita Donaghy's report, "One Death is too Many", on construction fatalities.
A successful party which fails to enter into settlement negotiations following an offer to settle may be deprived of a substantial proportion of its costs.
The question of limitation is relevant to all legal disputes. If the rules on limitation are not followed, a party who has suffered a wrong at the hands of another may be time-barred from seeking a remedy.
Since 2000, clauses requiring the referring party in an adjudication to pay all the legal and expert costs of both parties, plus the costs of the adjudicator, have been held not to offend the Housing Grants, Construction and Regeneration Act 1996 (HGCRA).
How long can a contractor be on the hook for defective works under a building contract?
From 25 March 2010, all government departments, agencies, non-departmental public bodies (and the bodies over which they have direct control) will be required to include a contract condition requiring their contractors to pay their subcontractors within 30 days.
When negotiating a contract, should you be including an entire agreement clause? If so, how do you make sure it does what you want it to?
Real life and legal obligations - not always a happy mixture. In real life things don't go to plan - customers change their minds and demand changes in your work plan. Suddenly you don't need as many people or for as long as you expected.
Any contract of substance, and certainly one with an international element, should contain both a governing law and a jurisdiction clause. Consider the following tips on what to think about when drafting these clauses.
In this alert, Wragge & Co's dispute resolution experts set out some of the essential terms of commercial agents' contracts in the European Economic Area (EEA), focusing particularly upon the UK.
Lord Justice Jackson's Civil Litigation Costs Review makes a number of important recommendations which, if implemented, could result in significant changes to civil procedure.
If only we knew for sure! What we do know is that in the area of regulatory enforcement the last couple of years have brought great changes – new legislation, new case law and a new political emphasis. This trend is set to continue.
Following a number of high-profile tower crane failures in recent years, the Health and Safety Executive has announced its proposals for a statutory conventional tower crane register which is expected to come into force on 6 April 2010.
Following an incident, if the regulator believes an offence has been committed, a request for an interview under caution pursuant to the provisions of the Police and Criminal Evidence Act 1984, often referred to as a "PACE interview" may be made.
Accidents happen: it's a fact of life and business. No matter what an organisation does to prevent an accident, or to deal with the aftermath to prevent a re-occurrence, there may be situations where a prosecution will still be brought.
Any business involved in the manufacture, preparation, storage, service or sale of food, even if only in the staff canteen, needs to be aware of and deal with the vast array of regulation with which it is required to comply.
To what extent do trespassers need to be warned, protected, or prevented from coming onto property that might cause them harm?
Approximately 20 people are killed and 250 seriously injured every week in crashes involving someone who was driving or otherwise using the road for work purposes.
Wragge & Co's health and safety experts pose some essential questions for producers and/or distributors to consider and suggest some steps to take should a risk to consumers arise.
172 million days were lost in 2007 due to sickness absence in the UK - equating to about 2.6% of working time. Of those days, 34 million were lost due to work-related illness.
The possibility of a prosecution for breach of regulations is at the forefront of every employer's mind when under investigation.
Pollution can arise from the most innocuous of situations and strike without any warning. The consequences can be severe, not just for the environment and any creatures or habitat affected by the pollution, but also for those found to be responsible.
We all know that accidents do happen from time to time. Immediately after an accident or near miss there is a perfectly natural desire to understand what happened, why and how it can be prevented from happening again.
The Health and Safety Executive (HSE), local authority or environment agency can turn up at your premises at any time. Following a report of an incident or accident, you can expect a regulator/authority visit – and the police if there has been a fatality.
Corporate offences are usually strict liability. This means there is no need for the prosecutor to prove that the offence was committed deliberately or even negligently.
"Why is there an under-representation of non-white ethnic minority workers in the construction industry, and what should be done about it?"
Mediation and other forms of alternative dispute resolution are now part and parcel of the dispute resolution landscape with the courts keen to ensure that litigation is very much seen as a last resort.
The right to refer disputes to adjudication is mandatory under the Housing Grants, Construction and Regeneration Act 1996 - but only where the contract in question is related to the carrying out of "construction operations", as defined.
Construction companies may find their self-employed subcontractors claiming entitlement to paid annual leave following the judgment of the Employment Appeal Tribunal in Redrow Homes (Yorkshire) Limited v Buckborough and Sewell.
The losing party in an adjudication usually ends up paying the fees of the adjudicator.These fees can be high, especially if the adjudication goes beyond the 28 or 42 days envisaged by the Construction Act.
When an adjudicator decides that one party must pay money to another, can the paying party successfully resist enforcement proceedings by exercising a right of set-off?
Whatever the economic climate, a local authority entering into a building contract will be concerned about protecting its position in the event of contractor insolvency. In today's market, these concerns are particularly acute.
This month Wragge & Co's construction experts have reviewed the latest reported adjudication cases.
The Planning and Energy Act received Royal Assent on the 13 November and came into force on the same date. The Act allows local councils in England and Wales to set reasonable requirements in their development plan documents.
A recent judgment has clarified that "winner takes all" no longer applies to recovery of costs in litigation. The formula to be used by trial judges in deciding the most appropriate costs order is now much more complicated.
And who says dispute resolution can't be fun? Watch the video to find out who was top dog!
In the current economic climate, a major concern for those in the construction industry is the risk of being dragged into adjudication proceedings by companies in financial difficulties.
Last month, the Department for Business, Innovation and Skills (BIS) published a draft Construction Contracts Bill to amend Part 2 of the Housing Grants Construction and Regeneration Act 1996.
Wragge & Co's Construction experts bring you the latest on the cases and issues affecting the lending industry.
Yesterday, the Government announced its national renewable energy blueprint and put its renewable energy strategy out to consultation.
Last Friday, Ofgem and BERR published a Policy Update. Read Wragge & Co's expert analysis of the update and take note of any relevant action points.
The Crown Estate has today announced eagerly awaited further information in relation to the tender process for the latest round of offshore windfarms (Round 3) at the British Wind Energy Association conference in London.
Employers could face the double threat of jail sentences and bigger fines for a greater number of health and safety offences under proposed new legislation. Wragge & Co's legal experts keep you informed with the facts.
This week, in Owen Pell Limited v Bindi (London) Ltd., the Technology and Construction Court clarified the potentially binding nature of an expert determination. Read our analysis of the case with action points before you agree to an expert determination.
"Beating" a Part 36 offer will not necessarily lead to a costs order in your favour as seen in Carver v BAA. Read our analysis of this potentially far reaching decision and consider our action points when reviewing all Part 36 offers.
The Court of Appeal has reversed an earlier court decision which refused to allow a party to rely on an exclusion clause contained in its standard terms of business. Read our expert analysis of the case.
Wragge & Co's construction and energy experts have compiled an analysis of the ways in which green energy can be produced and a step-by-step guide on how to become a renewable energy producer.
Local authority lawyers can have a bewildering variety of forms of professional appointments pass over their desks. How can they judge the comparative strength of appointments when they can differ so much in terms of structure, origin, length and drafting?
The new Construction (Design and Management) Regulations 2007 have been introduced to raise the level of professional competence and accountability in public sector contracts.
April sees legisltive changes affecting development and refurbishment projects. Get all the information from Wragge & Co's legal experts.
On 6th April 2008 the Site Waste Management Plans Regulations come into force. What does this mean for you?
City Inn Limited v Shepherd Construction Limited (30 November 2007) contains useful practical guidance on two areas that often arise in the context of contractors' claims for delay - concurrent delays and the critical path.