Berwin Leighton Paisner Blog

The Berwin Leighton Paisner engineering, construction and procurement group give their views on current developments and share their practical experience.

The effect of a failed adjudication on the JCT final certificate “conclusive evidence” clause

Posted by Berwin Leighton Paisner on 15th April 2014

James Clarke, senior associate, Berwin Leighton Paisner:

In University of Brighton v Dovehouse Interiors Ltd, Carr J in the TCC gave guidance on the meaning of “commenced” adjudication proceedings for the purposes of challenging a final certificate under the JCT standard form of contract. The judgment also considers what the position is where the adjudication is then aborted. Read the rest of this entry »

Net contribution: a problem shared?

Posted by Berwin Leighton Paisner on 9th April 2014

John Hughes-D’Aeth, partner, Berwin Leighton Paisner:

I can’t believe that it is nearly five years since I blogged on the Langstane case. Time obviously flies when you’re getting old.

For those of you with short memories or with youth on your side, in Langstane a Scottish judge held (among other things) that a net contribution clause (NCC) in a consultant’s appointment was not “unreasonable” for the purposes of the Unfair Contract Terms Act 1977. That led to a flurry of claims from consultants (and their representative bodies) that NCCs were “fair” and “judicially endorsed”. Of course, the case decided nothing of the sort; merely that the NCC in question was not so unreasonable as to fall foul of UCTA. Read the rest of this entry »

“The Legend of Sleepy Hollow” – pitfalls of a failed novation

Posted by Berwin Leighton Paisner on 26th March 2014

Matthew Crossley, associate, Berwin Leighton Paisner:

With design and build (D&B) now firmly established as the procurement route of choice for many UK building projects, novation is a popular way of ensuring that single point responsibility for design rests with the contractor. However, the recent decision in Hillcrest Homes Ltd v Beresford and Curbishley Ltd reminds us that we must not take it for granted. In that case, a novation agreement executed by the structural engineer after practical completion was held not to be effective to transfer its appointment to the contractor. As a result, the employer remained responsible for structural design defects as between it and the contractor. Read the rest of this entry »

Does the court have to sanction all extensions to the litigation timetable?

Posted by Berwin Leighton Paisner on 12th March 2014

Alexandra Clough, senior associate, Berwin Leighton Paisner:

We are nearly one year into the Jackson reforms, but it would be fair to say that the full implications of the reforms are still being worked out by the courts. How the changes are operating in practice has generated much debate in the legal press, although much of the coverage has focused on the implications the rule changes might have on budgeting and cost recovery. The court’s no nonsense approach is now impacting on a party’s right to rely on expert and witness evidence. Read the rest of this entry »

The wrong side of the tracks: indemnities and asset protection agreements

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 »

Is the cost of litigating set to rise as court fees are increased?

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 »

Proceeding regularly and diligently

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 »

Multi-party and multi-contract disputes: the developing story of complex arbitrations in the major institutions

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 »

Christmas wordsearch 2013

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 »

Is cost management by the courts working?

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 »