A nail in the coffin for liquidated damages challenges

Guest Editors Peter O’Brien and Thomas Wheeler of Clyde & Co say recent court decisions show reluctance to look behind what parties have agreed to find a liquidated damages clause unenforceable. Applying the same principles in some scenarios could lead to double recovery of losses by Employers, they warn.

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Reports from the courts: November 2021

Our latest round up of court cases of most interest to construction comes from Andrew Croft and Ben Spannuth of Beale & Company Solicitors LLP. One judgment reinforces the view that the courts will support ‘the natural and ordinary meaning of the words used’ in commercial agreements; and in a Scottish case the judgment warns against ‘contrived or technical defences’ which the courts will ‘examine with a degree of scepticism’.

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Strategic focus could prevent race to the bottom on costs, say MPs

With publication of the government’s Comprehensive Spending Review, construction is pinning a lot of hopes for future workloads on government promises about ‘levelling up’ left behind parts of the UK, which is to be at least partly addressed by significant infrastructure investment. Details are only starting to come through but doubts have been raised by MPs that the government even knows what levelling up means, Nick Barrett reports.

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Construction Law Guide to: Defects provisions in construction contracts

In our latest guides to construction law series article Tom Manley of DLA Piper looks at defects provisions in contracts.

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Choice of English law for international construction contracts

Mark Macaulay and Gurbinder Grewal of Dentons Middle East and UK LLP consider why English law is a popular choice for construction contracts internationally. Cultural reasons contribute to the high reputation of UK law for doing business under.

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Supreme Court Triple Point ruling prompts NEC4 amendments

Tom Howell of Beale & Company LLP examines the potential impact on NEC contracts of a Supreme Court ruling that reversed an Appeal Court decision. Case law now supports the ‘orthodox’ approach to the application of liquidated damages prior to contract termination.

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Adjudication: Just one [dispute] at a time please!

Karen Gough of 39 Essex Chambers analyses a seldom reported fact about adjudication, that despite it being established that an adjudicator can only deal with a single dispute in an adjudication, satellite disputes and jurisdictional challenges continually arise around the issue.

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Constructing an Agreement – Mediation in the Construction Industry.

Chris Bryden and Georgia Whiting of 4 King’s Bench Walk lament the industry’s reluctance to adopt mediation more enthusiastically than it has. There is much to gain, and little to lose, by using mediation to resolve disputes, they argue.

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The Ins and Outs of Subrogation

Insurance expert John D Wright of JD Risk Associates analyses the common law principle of subrogation which is intended to ensure that parties responsible for losses are held accountable. The idea is simple, but complex issues can arise, he warns.

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Courtesy paves the way for compromise – and wellbeing

Tracey Summerell of Dentons UK & Middle East LLP argues that alternative dispute resolution is more likely to produce a process that promotes positive mental health as well as satisfactory business outcomes.

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