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Reports from the courts: December 2014

Our regular round up of the court cases of most interest to construction comes from Andrew Croft and Jennifer Webb of Beale and Company, focusing on a ruling that shows the need for careful drafting of clauses granting rights to third parties; and one standing as a warning to make sure that liquidated damages claims are based on genuine pre-estimates.

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Insolvency defined

Our contracts monitor Michael Phipps, Principal of Thurston Consultants, continues his scrutiny of the JCT Management Building Contract 2011 and is grateful that the clauses relating to assignment, third party rights and collateral warranties are little changed. In the event of a termination, take advice before applying the contractual provisions, he warns.

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FIDIC Yellow Book and judicial interpretation

James Pickavance and Kate Sanger of Eversheds analyse a recent court ruling interpreting the FIDIC Yellow Book with implications for both employers and contractors.

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Conclusivity in construction contracts

Michael Wheater of Hardwicke Chambers explains in what circumstances the courts will regard final certificates as conclusive evidence. The courts have a long track record of upholding conclusive evidence clauses and recent case law shows the importance of following correct procedure.

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The defences of set-off and abatement

A variety of defences are available against claims involving the use of set-off or abatement. Martyn Naylor of 4 Pump Court explains how several different types can be used in different circumstances.

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Adjudication heads east

Statutory adjudication has been a great success in the UK, where it was first introduced. Other jurisdictions are following the UK lead and introducing more flexibility to the process as Laura Coates of Clyde & Co reports.

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Good faith in English law: what does it mean?

Although there is no established legal definition of what good faith actually means, the courts now accept that good faith provisions in contracts can be enforceable. Paul Giles and Emily Walling of Eversheds explain how the courts’ view has been developing.

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Underinsurance – a constant problem

Insurance expert John D Wright of JD Risk Associates looks at the issues thrown up by failing to insure adequately. The problem seems to be widespread among consumers, but even construction companies have found themselves caught out.

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FIDIC dispute resolution system upheld

Our latest alternative dispute resolution series article, from Charlotte Davey of Clyde & Co, looks at a decision by a Swiss court that supports the multi-tiered nature of the FIDIC dispute resolution system.

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Legal terms explained: Bilateral Investment Treaties

Contractual disputes invariably get resolved in accordance with the contractual dispute resolution clauses. Sometimes, however, there is an alternative through the use of bilateral investment treaties (BIT). This is not always an option, but when it is a possibility it can serve a very useful function.

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