Nicola Thompson, associate, Berwin Leighton Paisner:

Parties too often under-estimate the value of having their case on quantum in order in the lead up to a hearing. In the context of complex high value construction disputes much has been written about the role of experts and ensuring that their evidence is properly presented to the court. The court’s gaze is increasingly turning to liability experts, particularly in the context of delay analysis.

Does this mean that the need to get the figures right and the claim substantiated is just too obvious that we don’t need reminding? After all in the vast majority of the cases we are involved with, the parties are fighting over how much money is owed to whom or the “real” cost of remedying defective work, and they can’t do that without properly presenting their case on quantum, can they? Read the rest of this entry »

Jancyn Gardiner, principal knowledge development lawyer, Berwin Leighton Paisner:

The extent to which a party may be obliged to sacrifice its own commercial interests in complying with an “endeavours” obligation in a commercial contract is an issue to which there is no easy answer. A different but related issue was considered in two recent cases: whether a party who is in financial difficulty can rely on an “endeavours” provision to avoid other contractual obligations. Read the rest of this entry »

Tom Bain, associate, Berwin Leighton Paisner:

I am always worried that failing to tick the correct box on a form could have dangerous consequences, but it is reassuring to see that the TCC does not view such an error as fatal, at least when it comes to revising an approved costs budget.

Since the introduction of the costs management pilot scheme in the TCC, construction practitioners have been waiting to see how the court would deal with a party’s application to revise its costs budget, where it had not complied strictly with the practice direction. We have already seen the Court of Appeal’s decision in Sylvia Henry v News Group Newspapers Ltd, which looked at approved budgets in the context of the defamation pilot. An opportunity for the TCC arose recently in Murray v Neil Dowlman Architecture Ltd. Read the rest of this entry »

Hannah Crockett, associate, Berwin Leighton Paisner:

I recently attended a topping out ceremony organised by a developer client. At the ceremony, I was extremely interested to hear the developer attribute the early completion of this particular superstructure to the spirit of good faith in which the parties had worked. Having drafted the JCT-based building contract between the developer and the contractor, I knew that it did not contain an express obligation on the parties to act in good faith and that, traditionally, English law has been reluctant to imply such terms into contracts.

Read the rest of this entry »

Ben Mellors, senior associate, Berwin Leighton Paisner:

The uncertainty surrounding how to enforce dispute adjudication board (DAB) decisions that are binding but not yet final is a favourite topic for debate amongst FIDIC practitioners. However, it is more than simply an academic point. Arbitral tribunals are repeatedly grappling with it and are broadly divided, adding to the uncertainty. That FIDIC has recently (on 1 April 2013) taken the unusual step of publishing a Guidance Memorandum on this narrow issue underlines that it is a real concern for users of FIDIC contracts. This led me to ask whether this guidance moves matters forward? Read the rest of this entry »

Melissa Moriarty, senior associate, Berwin Leighton Paisner:

I recently advised on the question of whether a liquidated damages clause was a penalty. My attention was drawn to the recent case of Cavendish Square Holdings BV and another v El Makdessi. You may not have come across this judgment, as it is not a construction case, and does not concern liquidated damages. Rather, the question of whether a clause was a penalty arose in the context of a restraint of trade clause. Nevertheless, the court’s decision provides an important reminder to those negotiating liquidated damages clauses in construction contracts. Read the rest of this entry »

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

I am always nervous when contracts that I had a hand in drafting end up in the High Court. Thankfully it hasn’t happened too often, but when it does there is an inevitable frisson as I wonder what the judge will make of it. Will he agree that my drafting means what I intended it to say? Will he give it an entirely different interpretation? Or – worst of all – will he (to quote Salmon LJ) condemn it as a “farrago of obscurities”? Read the rest of this entry »

Simon Liddiard, principal solicitor at Berwin Leighton Paisner LLP’s Managed Legal Service for Thames Water:

Have you ever been involved in negotiating a contract term that seemed eminently sensible, only to find that its application was rather more complex than initially supposed? Sometimes I feel that Parliamentary draftsmen must feel the same way, trying to draft legislation of general application against a backdrop of a huge existing body of law and varying commercial practices.

The amendments to the Late Payment of Commercial Debts (Interest) Act 1998, which are coming into force on 16 March 2013 under the Late Payment of Commercial Debt Regulations 2013, are a case in point. Read the rest of this entry »

Claire McNamara, head of LDR know-how, Berwin Leighton Paisner:

My last blog on cost management was, I now appreciate, rather boldly titled “Cost management by the courts is here to stay”. I was writing in the context of the TCC but my thoughts were soon endorsed when the judiciary announced that the cost management regime would be applied to all multi-track cases in all courts save for the Commercial Court. Read the rest of this entry »

Terry de Souza, partner, Berwin Leighton Paisner:

With the increased use of “cost reimbursable” or “cost plus” contracts such as the IChemE Green Book and NEC3 option E, now is a good time to consider the employer’s right of audit in more detail. Read the rest of this entry »