Reports from the courts: August 2014

In our regular round up of court decisions of most interest to construction Will Buckby and Andrew Croft of Beale & Company report on a rare example of a partnering agreement being examined in court; and on a Scottish court ruling on enforcing an adjudicator’s decision.

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Suspension rights little changed

Our contracts monitor Michael Phipps, Principal of Thurston Consultants, scrutinises the Pay Less Notices of the JCT’s Management Building Contract 2011. Protections against abuses such as delaying payment to the Contractor on the pretext that a certificate has not been issued have been strengthened.

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Variations on a theme

Michael Sergeant of Holman Fenwick Willan, the co-author of the recently published book Construction Contract Variations, considers the importance of variation instructions and how and why a contractor may seek to claim payment for additional work outside the formal contractual mechanism.

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BIM: a great opportunity being wasted?

With less than 18 months to go before roll out of plans for Building Information Modelling to be used on all government projects, Charles Tomlinson of Weightmans reviews progress so far. Some fundamental changes still have to take place to give BIM a fighting chance, he concludes.

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Giving credit where it is due

Luke Wygas of 4 Pump Court reports on a shipping case that has relevance for construction disputes over breaches of contract that result in windfall gains for claimants. Considerations of justice will shape a court’s view on whether defendants should share the benefits.

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High bar set for setting aside arbitration orders

Vijay Bange of Trowers & Hamlins reviews a case highlighting the need for parties wanting to refer a dispute to arbitration to make sure that they follow the applicable rules correctly and ensure that details of the other party are accurate. A lot of time, money and effort might otherwise be spent.

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House of Lords’ ruling needed

Insurance expert John D Wright of JD Risk Associates explains the insurance view on economic loss and explains why collateral warranties may be needed to cover for some losses. Contradictory case law will be generated until there is a House of Lords’ ruling, he predicts.

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What a difference a year makes

Dileep Pisharody, partner at Hill Dickinson LLP, considers a recent Court of Appeal decision that overturns an earlier finding regarding net contribution clauses. These clauses should be pointed out to clients, especially when they are consumers.

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ADR is ‘A-OK’

In our latest alternative dispute resolution article Aine Quinn and Rachel Chaplin of Clyde & Co report on a court decision that underlines the high risks of refusing to engage in mediation and ADR.

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Hold onto your Panama hats

The Arcadis survey of construction disputes has been running for four years, and the latest survey shows no sign that the global market for construction lawyers is slowing down.

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