Posted by Berwin Leighton Paisner on 26th February 2014
Adriano Amorese, senior associate, Berwin Leighton Paisner:
It is very difficult to procure a construction or engineering project in a city like London without encountering at least one third party with potentially “at risk” assets. Typically, these third parties want their assets protected, measures taken to mitigate the risk of damage and insurance-backed compensation arrangements put in place to cover any conseqeuntial costs or losses should damage occur.
As a result, many third parties (especially statutory undertakers) have finely tuned asset protection agreements (APAs), which usually require compensation for their costs and losses to be on an indemnity basis. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 11th February 2014
Catherine Gelder, partner, Berwin Leighton Paisner:
The Ministry of Justice (MoJ) has consulted on increasing court fees, including in the TCC. The aim is to reduce the cost to the taxpayer; to achieve full cost recovery by making those who can afford to pay contribute more to the costs of the courts.
Many lawyers are up in arms about the proposals. My initial thought was that the proposals seemed broadly reasonable, especially when compared with the cost of arbitration, but that can’t be the only measure. The MoJ must also consider the disproportionate impact on smaller disputes, often brought by individuals or SMEs. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 29th January 2014
Geraldine Laing, associate director, Berwin Leighton Paisner LLP:
A client called me recently to discuss an issue that is probably familiar to many clients. On this particular project the pace of work is slowing, the contractor has missed a number of key programme dates and completion by the contractual date for completion is looking very unlikely. The contractor is obliged to progress the works with due diligence. Is it in breach of this obligation? Read the rest of this entry »
Posted by Berwin Leighton Paisner on 15th January 2014
Marcus Birch, senior associate, Berwin Leighton Paisner LLP:
It is well recognised that because of its consensual foundation, arbitration can be difficult as a means of settling complex multi-party and multi-contract disputes. This has historically been a problem for construction practitioners and clients because an ever increasing proportion of large disputes are complex and involve multiple contracting parties. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 18th December 2013
Instead of the usual straightforward Christmas quiz, this year we give you our festive construction wordsearch! Read the rest of this entry »
Posted by Berwin Leighton Paisner on 11th December 2013
Claire McNamara, associate director and head of LDR knowhow, Berwin Leighton Paisner:
Cost management in the courts has been around now for some time. In the TCC, we have had extended pilots dating back to 2010 and, since April 2013, the new provisions courtesy of section II of CPR Part 3 and PD 3E have been in place.
With this backdrop, I am often being asked whether I think cost management is working. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 4th December 2013
Melissa Moriarty, senior associate, Berwin Leighton Paisner:
In April this year I looked at the “new test” (set out in Cavendish Square Holdings BV and another v El Makdessi) for determining whether or not a contractual provision is a penalty. Last week, the Court of Appeal overturned the decision at first instance, and struck out the relevant clauses as penalties. In doing so, the court went some way towards clarifying the law on penalties. Although the Cavendish case is not a construction case this decision is relevant to everyone negotiating liquidated damages clauses in construction contracts. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 20th November 2013
Iain Suttie, senior associate, Berwin Leighton Paisner:
If you like puzzles, I’ve got some for you: they’re called provisional sums. Most people in the construction and engineering sectors are aware of provisional sums since they appear in many contracts and price build-ups. However, the impression I have is that “provisional sums” mean quite different things to different people. Perhaps a bigger puzzle is why we continue to use them as often as we do. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 6th November 2013
Caroline Pope, partner, Berwin Leighton Paisner:
On 1 November 2013, Edwards-Stuart J formally launched a new e-disclosure protocol to the masses as part of a stimulating and extremely well attended all-day conference, “E-disclosure in practice”. The protocol is the brainchild of Steven Williams and the TeCSA e-disclosure working group.
The event was organised by TeCSA, TECBAR and the SCL to provide practical guidance on the e-disclosure process. As well as a range of extremely knowledgeable speakers, all of whom have worked “at the coal face” of e-disclosure, the involvement of Edwards-Stuart J as the key note speaker and the presence of Stuart-Smith J showed just how seriously the TCC are taking the subject of e-disclosure. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 23rd October 2013
Simon Liddiard, principal solicitor at Berwin Leighton Paisner LLP’s Managed Legal Service for Thames Water:
The real estate industry can be slow to react to innovation. The slow uptake of third party rights in lieu of collateral warranties is a classic example of this: the Contracts (Rights of Third Parties) Act 1999 (Third Party Rights Act 1999) is 14 years old, yet there are still parts of the industry that do not trust third party rights.
Ironically, the recent judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales and West Ltd suggests that perhaps our scepticism might have been better directed at collateral warranties. If Parkwood is correct, then for the last 17 years it would seem that the industry has fundamentally misunderstood the nature of some of the collateral warranties that it has been writing. Read the rest of this entry »