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Construction Risk Newsletter - May 2019

Published 22 May 2019

Parties making jurisdictional reservations in adjudication must articulate their challenges in a manner which allows an adjudicator to ‘deal with the jurisdictional objection’

In Ove Arup & Partners International Limited v Coleman Bennet International Consultancy Plc [2019] EWHC 413 (TCC), Arup applied to the court for summary judgment against CBI to enforce an adjudicator’s decision.

The recent decision in Axis M&E UK Ltd & Anor v Multiplex Construction Europe Ltd [2019] EWHC 169 (TCC) has provided a useful review of the case law in this area and what might fall within the scope of the slip rule under the Scheme for Construction Contracts (“the Scheme”).

The recent judgment handed down by the Court of Appeal in Chudley & Ors v Clydesdale Bank PLC[2019] EWCA Civ 344 is of particular interest as the decision provides clarity as to how s.1(3) of the Contract (Rights of Third Parties) Act 1999 (the “Act”) is to be applied, and more specifically it confirms that a Claimant is not required to plead and prove a counterfactual for a claim in breach of contract in order to succeed.

The recent decision in Freeborn & Goldie v Dan Marcal Architects [2019] EWHC 454 (TCC) is a stark reminder for construction professionals of the importance of accurate written records.

The recent Court of Appeal decision in Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWCA Civ 2695 has upheld the first instance decision which permitted a stay of execution to be granted against the enforcement of an adjudicator’s decision on the basis that there was a real risk the assets would be dissipated before the substantive dispute could be determined.

The case of Hitachi Zosen Inova AG v John Sisk & Son Ltd, has provided clarification when challenging the jurisdiction of an adjudicator, where it is claimed that the same or substantially the same question has already been decided in an earlier adjudication.

A fundamental but often overlooked principle of any agreement relating to works is what constitutes “practical completion”. Most standard forms fail to adequately define “practical completion” and it is a point which creates fertile grounds for dispute.

In 2012, TPT a supplier of software used in commodities trading was engaged by PTT, a commodities trader, to provide a new software system for trading and risk management. PTT invited bids to replace its existing system (“Phase 1”) and then develop the new system to handle new types of trade (“Phase 2”). Triple Point’s contract for Phase 1 was signed in February 2013, and provided a table of key development/implementation milestones upon which payment could claimed.

The Sentencing Council has recently assessed the impact and implementation of the Sentencing Council’s Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences Definitive Guideline, which came into force on 1 February 2016. Its report on this assessment was published on 4 April.

Mark Roach

London - Walbrook

+44 (0)20 7894 6314

mroach@dacbeachcroft.com

Key Contacts

Mark Roach

London - Walbrook

+44 (0)20 7894 6314

mroach@dacbeachcroft.com

Construction Risks - December 2018

By Mark Roach

Since our last edition, there has been a mixed bag of cases and precedents set down by the various Courts…

Construction Risk Newsletter - May 2019's Tags

Construction Risk Newsletter - May 2019

Parties making jurisdictional reservations in adjudication must articulate their challenges in a manner which allows an adjudicator to ‘deal with the jurisdictional objection’

In Ove Arup & Partners International Limited v Coleman Bennet International Consultancy Plc [2019] EWHC 413 (TCC), Arup applied to the court for summary judgment against CBI to enforce an adjudicator’s decision.

The slip rule – how far does it go?

The recent decision in Axis M&E UK Ltd & Anor v Multiplex Construction Europe Ltd [2019] EWHC 169 (TCC) has provided a useful review of the case law in this area and what might fall within the scope of the slip rule under the Scheme for Construction Contracts (“the Scheme”).

Third party rights: Chudley & Ors v Clydesdale Bank PLC

The dangers of defective record keeping – Freeborn & Goldie v Marcal

The recent decision in Freeborn & Goldie v Dan Marcal Architects [2019] EWHC 454 (TCC) is a stark reminder for construction professionals of the importance of accurate written records.

Risk of dissipation – upheld as a principle for granting a stay of execution

Challenging the jurisdiction of an adjudicator – update

The case of Hitachi Zosen Inova AG v John Sisk & Son Ltd, has provided clarification when challenging the jurisdiction of an adjudicator, where it is claimed that the same or substantially the same question has already been decided in an earlier adjudication.

What constitutes “Practical Completion” considered in (1) Mears Ltd v Costplan Services (South East) Ltd and others; and (2) University of Warwick v Balfour Beatty

A fundamental but often overlooked principle of any agreement relating to works is what constitutes “practical completion”. Most standard forms fail to adequately define “practical completion” and it is a point which creates fertile grounds for dispute.

Liquidated Damages post termination

Sentencing Council’s impact assessment - large fine increases for organisations of all sizes

Authors

Mark Roach

Key Contacts

Mark Roach

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Construction Risks - December 2018

By Mark Roach

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Construction Risk Newsletter - May 2019

Parties making jurisdictional reservations in adjudication must articulate their challenges in a manner which allows an adjudicator to ‘deal with the jurisdictional objection’

In Ove Arup & Partners International Limited v Coleman Bennet International Consultancy Plc [2019] EWHC 413 (TCC), Arup applied to the court for summary judgment against CBI to enforce an adjudicator’s decision.

The slip rule – how far does it go?

The recent decision in Axis M&E UK Ltd & Anor v Multiplex Construction Europe Ltd [2019] EWHC 169 (TCC) has provided a useful review of the case law in this area and what might fall within the scope of the slip rule under the Scheme for Construction Contracts (“the Scheme”).

Third party rights: Chudley & Ors v Clydesdale Bank PLC

The dangers of defective record keeping – Freeborn & Goldie v Marcal

The recent decision in Freeborn & Goldie v Dan Marcal Architects [2019] EWHC 454 (TCC) is a stark reminder for construction professionals of the importance of accurate written records.

Risk of dissipation – upheld as a principle for granting a stay of execution

Challenging the jurisdiction of an adjudicator – update

The case of Hitachi Zosen Inova AG v John Sisk & Son Ltd, has provided clarification when challenging the jurisdiction of an adjudicator, where it is claimed that the same or substantially the same question has already been decided in an earlier adjudication.

What constitutes “Practical Completion” considered in (1) Mears Ltd v Costplan Services (South East) Ltd and others; and (2) University of Warwick v Balfour Beatty

A fundamental but often overlooked principle of any agreement relating to works is what constitutes “practical completion”. Most standard forms fail to adequately define “practical completion” and it is a point which creates fertile grounds for dispute.

Liquidated Damages post termination

Sentencing Council’s impact assessment - large fine increases for organisations of all sizes

Authors

Mark Roach

Key Contacts

Mark Roach

Construction Risks - December 2018

By Mark Roach

Developers’ Remediation Contract - Sign on the dotted line… or else

The effect of a Final Statement under the JCT D&B 2011 and when to adjudicate

Full rate of LADs applicable even when employer takes possession of part

Requirement to adjudicate first under the NEC contracts

Payment Notices – a “genuine belief” in the valuation - Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd [2021] EWHC 2441 (TCC)

Three into one: multiple payment applications deemed a single dispute

John Doyle Construction Limited (In Liquidation) v Erith Contractors Limited [2021] WLR(D) 516]

Mansion Place Ltd v Fox Industrial Services Ltd - Parties are bound by “hands free” verbal agreement to forego liquidated damages

Construction (Retentions Abolition) Bill 2021-22

No contract, no duty of care Multiplex v Bathgate & others [2021] EWHC 590 (TCC)

DACB’s 2021 Construction look ahead

Construction Risks Newsletter - December 2020

Successful use of manifest injustice to resist enforcement of an adjudicator’s decision

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Dickie & Moore Ltd v McLeish & Others [2020] CSIH 38: The Trilogy

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