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 »
Posted by Berwin Leighton Paisner on 8th October 2013
Richard Power, partner, Berwin Leighton Paisner:
Berwin Leighton Paisner’s (BLP) third annual arbitration survey indicates that most arbitration users feel that document production adds significant delay and cost to the process, yet rarely contributes much to the outcome of the arbitration. It also indicates that tribunals and parties are struggling to get to grips with e-disclosure, and that tribunals are often not up to speed on the issues when hearing document production applications.
In light of this, should we simply do away with document disclosure and accept that it may, in certain circumstances, be possible and indeed appropriate to get to the right answer without this extensive trawl through the documents? After all, the adjudication of construction disputes typically operates on this basis and more often than not results in an outcome that the parties choose to live with as the final determination. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 25th September 2013
Sally Kerridge, associate, Berwin Leighton Paisner:
I recently had the fortune of sitting on the TeCSA marshalling scheme, which allows junior lawyers specialising in technology, engineering or construction the opportunity to shadow TCC judges for one week. This gave me the unique opportunity to witness hearings from an entirely neutral perspective, without the normal influence of one’s own involvement in either side of the case.
We all know the usual list of do’s and don’ts for a successful hearing but, from an elevated (the marshal sits next to the judge on the bench), all seeing, all hearing perspective, it becomes even more compelling as to why strategic and rigorous case and hearing management is important. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 11th September 2013
John Hughes-D’Aeth, partner, Berwin Leighton Paisner:
After nearly 30 years in the construction law game, I should no longer be surprised when an unexpected decision comes along. But Akenhead J’s judgment in Parkwood Leisure Ltd v Laing O’Rourke Wales & West Ltd made me sit up and draw breath.
Last week’s Practical Law legal update notes that the decision will be a “surprise to most practitioners”. With great respect to the learned judge, I would go further and say that it is simply wrong. It is also likely to have highly undesirable ramifications for the negotiation of collateral warranties in future. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 14th August 2013
Richard Benn, associate, Berwin Leighton Paisner:
The Court of Appeal has recently been grappling with the issue of guarantees again. In CIMC Raffles Offshore (Singapore) Ltd and another v Schahin Holding SA it considered the extent to which an anti-discharge provision may operate to exclude the purview doctrine in the context of guarantees. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 30th July 2013
Sara Paradisi, associate, Berwin Leighton Paisner:
There has been a lot of hype in the past year about predictive coding. Lawyers have prided themselves on being fantastically “in the moment” when proposing this advanced technology to clients, in the context of large disclosure exercises, with the promise that it will save time and money. Indeed, using this latest technology has become an effective way for law firms to set themselves apart from their competitors. However, clearly clients should not use it simply because it is the latest trend. It is critical that we, as legal advisers, and our clients understand how it works and when its use is appropriate, so that we can make an informed decision. Read the rest of this entry »
Posted by Berwin Leighton Paisner on 3rd July 2013
Natalie Wardle, senior associate, Berwin Leighton Paisner:
I was recently negotiating a procurement contract that brought to mind recent cases concerning good faith obligations. It occurred to me that if there is a move towards including express good faith obligations in construction contracts, should we not also consider addressing the consequences of acting in bad faith? Read the rest of this entry »