Articles

Having recently won a contractual dispute for a Contractor in the Royal Courts of Justice as a Direct Public Access Barrister that was hard fought over many years, I am reminded of the importance of having a robust written contract in place for construction projects before the start of the work. It is well known by Contractors that in a lump sum contract if work is included in the original contract the Contractor cannot claim extra payment for it. They have to show that it is extra work that was not agreed before the work was commenced but was later agreed as a variation. In the case in which I represented the Contractor in court, the use of an appropriate standard form of construction contract or bespoke contract with standard variation clauses would have avoided the need for a trial, cross examination of witnesses and the examination of evidence in ...


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THWARTING THE ENFORCEMENT OF THE ADJUDICATOR'S DECISION The TCC decision of Gosvenor -v- Aygun Aluminium UK Limited [2018] EWHC 227 has enlarged the circumstances in which the court will stay the enforcement of an adjudication. This is where the winning party to the adjudication organises its financial affairs with the purpose of dissipating or disposing of the adjudication sum, so that it will not be repaid on a final determination of the dispute by the courts in later successful proceeding brought by the losing party. The case also considered whether allegations of fraud were enough to persuade the court not to enforce the adjudicator’s decision. When will the court order a stay? The underlying principle of adjudication is that the decision of the adjudicator is temporarily binding until the dispute leading to the adjudication is finally determined by the courts. This has led the TCC to ordering a stay of ...


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HE WHO PAYS THE PIPER – THE INDEPENDENCE OF EXPERTS IN CONSTRUCTION DISPUTES The overriding truth of experts in construction disputes He who pays the piper does not call the tune in the Technology and Construction Court when it comes to the giving of expert evidence. This is because although experts owe a duty of care to those instructing them the Civil Procedure Rules make it clear that they have an overriding duty to the court to assist it in matters within the expert’s expertise. They must provide independent evidence of their opinion. The Civil Justice’s Protocol for the Instruction of Experts to give evidence in Civil Claims says that a useful test of independence is whether the expert would express the same opinion if given the same instructions by an opposing party. Paragraph 4.3 of the Protocol says experts should not take it upon themselves to promote the point ...


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Quantum Meruit – Contractors, claim for work done where no contract If the court finds that a contract has not come into existence because the price is not agreed or because essential terms are not agreed or if work was carried out outside of the terms of the contract then unpaid Contractors can claim an entitlement to be paid a reasonable sum by way of Quantum meruit for the work carried out. The term Quantum Meruit broadly means a reasonable remuneration for work done or goods supplied where there is no agreement as to price or where a contract never becomes binding or is later discovered to be void. Where a Defendant has been unjustly enriched by receiving a benefit in a case where there is no contractual agreement between the parties or where a contract has been frustrated, avoided or it has become unenforceable, the claim to be brought is ...


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BLOWING YOUR CHANCE TO RESERVE YOUR POSITION IN ADJUDICATION  A party must reserve its position to challenge the Adjudicator’s decision on jurisdiction or natural justice if it acts in such as a way that could be construed as an acceptance of the decision. If a party through its conduct decides to accept that decision and then changes its position in the adjudication process it may be find itself accused of “blowing hot and cold” by choosing to adopt opposite positions at the same time.   This is known as "approbating and reprobating" or "blowing hot and cold". The recent Technology and Construction Court decision of Dawnus Construction Holdings Limited -v- Marsh Limited [2017] EWHC 1066 (TCC) reasserts this long established principle that a party cannot “approbate and reprobate”, by simultaneously challenging and accepting the Adjudicator’s decision. In Dawnus, on an application to the TCC for summary judgment to enforce the Adjudicator’s ...


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THE FALLOUT FROM CARILLION - PRIVATE V PUBLIC FUNDING WHAT NOW FOR THE FINANCING OF INFRASTRUCTURE WORKS? The fallout from the collapse of Carillion has led to a heightening of the debate among politicians over how public works such, as the building of schools and hospitals, should be funded in the future. Since the Thatcher years, successive government have embraced the mantra of the need for low taxation and the avoidance of high public expenditure. The Private Finance Initiative (PFI) was introduced by Norman Lamont the Chancellor Exchequer in the John Major Conservative Government in 1992. This marked a move away from Government investment in the NHS, Education and other public services. The argument for it being introduced was that because of the economic climate, fiscal planning and pressure to increase the scope and quality of public services, high public funding for public works could not continue. After the John ...


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Contractors, Beware of Fitness For Purpose Obligations in Your Contracts

Construction companies, you should be vigilant in removing fitness for purpose obligations from your building contracts following the judgment of the Supreme Court that overturned the Court of Appeal decision in MT Hojgaard A/S -v- E.ON Climate and Renewables UK Robin Rigg East Limited [2015] EWCA Civ 407 and upheld the decision of Mr Justice Edward Stewart in the Technology and Construction Court, who decided that a “fitness for purpose” obligation was contained in the contract documents and the Contractor was bound by it. C ontractors, top of your list of unacceptable risks should be the “fitness for purpose” obligation, which is an absolute obligation that is not limited to the exercise of the lower standard of reasonable skill and care. The Supreme Court has decided that the Court of Appeal in MT Hojgaard A/S -v- E.ON Climate and Renewables UK Robin Rigg East Limited was wrong to overturn the ...


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Pay Back Time for the Poor “Insolvent” Contractor

The decision of Judge Coulson in the Technology and Construction Court (TCC) of Alexander & Law Ltd -v- Coveside [2013] EWHC 3949 is an illustration of the principle that the awards in construction Adjudications are no more than interim and it is always open for the losing party in an Adjudication to challenge the Adjudicator’s decision by going to back court to say that the Adjudicator got it wrong and that his decision should not stand. F or the poor Contractor on the verge of insolvency it will mean that they risk having a summary judgment ordered by the court, in enforcement of the Adjudicator’s decision, stayed for the reason that they will not be able to pay the money back if the Adjudicator’s decision is later found to have been wrong. Even though the TCC decided in this case that Alexander Law (AL) had brought and justifiably won Adjudication ...


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Making It Stick - Setting Aside the Judgment and Relief from Sanctions and the Civil Procedure Rules 3.9

If you are a Claimant in the High Court or County Court you should be aware that a fast and easy way of getting your money from a Defendant that you are claiming against is for you to get from the court a judgment in default of Defence or Acknowledgment of Service. T he Defendant has to comply with strict time limits to file and send their Defence and Acknowledgment of Service of the claim to you. If they do not comply with these time limits the Claimant has the chance to use an element of surprise by getting judgment without the Defendant having the opportunity of defending the claim. The Defendant that is caught out in this way can apply to have the judgment in default of Defence or Acknowledgment of Service set aside in certain circumstances. These are described below. CPR 13.3 (1) permits the court to set ...


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Are you setting yourself up for a disability discrimination claim?

I f you are disabled and facing discrimination at work you should be aware of the Equality Act 2010 which outlaws disability discrimination. It is unlawful to: Treat you as an employee or you as a job applicant unfairly on the grounds of your disability. Treat you as an employee/or as a job applicant unfairly for a reason relating to your disability. Fails to comply with its duty to make reasonable adjustments for an you as an employee/ job applicant. You will be defined as being disabled if you have a physical or mental impairment having a substantial and long term effect on your ability to carry out normal activities. Your employer has a duty to make reasonable adjustments to their premises, practices and procedures to prevent disabled employees from being put at a substantial disadvantage compared with non-disabled workers. Whether physical impairment was “likely” to recur – if so ...


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Ensuring You Get Made Redundant On Your Own Terms

Deciding upon the merits of the case – how I can help you I f you are facing redundancy I can help steer you through the process that your employer must follow and to help you decide upon whether or not you should contest a case to an Employment Tribunal or whether offers to settle the case should be accepted. How I can help you to pursue claims? Unfair redundancy You can claim that you were unfairly dismissed for redundancy because: There was no redundancy situation No or inadequate consultation took place There was an unfair selection There was no satisfactory search for suitable alternative employment I can help you by assessing your documentation, your procedures and evidence to show that there was no redundancy situation, that the consultation was unfair and inadequate, that you were unfairly selected from a redundancy pool of employees and by identifying whether your employer ...


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Top Tips for Dealing with Discrimination Claims

If you are an employee who wants to bring a discrimination claim in the Employment Tribunal you need to have in mind the key headline issues to succeed at the hearing or in negotiations with your employer towards settlement of the claim. D irect and indirect discrimination is unlawful in the employment field. This an outline of what is unlawful discrimination in Employment Law. (1) Sex Discrimination Direct Discrimination If you are a woman and have been treated less favourably than a man in employment this is direct discrimination. Treatment that is different is not enough for it to be unlawful – you will have to show less favourable treatment. The question is whether you would have received the same treatment but for your sex. Indirect Discrimination This occurs if your employer applies a requirement or condition to you as a woman which also applies to a man but which ...


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Get The Deal Done But Always Get It In Writing! Part 4

This is the final article upon the consequences of not having a signed and executed contract in place and how the courts address this problem. A simple contract The courts are willing to find that there has been a contract reached, depending on the facts of the case. The decision of Arcadis Consulting (UK) -v- AMEC (BSC) Limited [2016] EWHC 2509 is another in which the TCC decided that neither party’s terms and conditions were incorporated into the contract after another painstaking exercise by the court in analysing the exchanges by the parties of correspondence and documents that had the appearance of contractual terms and conditions. The court identified a letter that “had all the hallmarks of a letter of intent” and this constituted evidence of “a simple contract”. In addition the court said that performance by the parties “will often make it unrealistic to argue there was no intention ...


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Get The Deal Done But Always Get It In Writing! Part 3

This is the third part of a recurring theme for all businesses. What happens if your business does not have a contract in writing? Battle of the Forms - make sure you fax or e mail your terms across It is sometimes difficult to sort out when the contract was made when different terms and conditions are in play. What do the court decisions tell us? A “battle of the forms” decision is Transformers & Rectifiers Limited -v- Needs Limited [2015] EWHC 269 the Technology and Construction Court found that neither party’s terms and conditions applied in circumstances where the Claimant’s terms and conditions were printed on the back of purchase orders and the Defendants’ terms and conditions were referred to in an acknowledgments of order. The TCC Judge Edwards Stuart decided that neither side’s terms and conditions applied because they had not been sufficiently brought to the attention of ...


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Get The Deal Done But Always Get It In Writing! Part 2

This is the second part of my discussion on the consequences of not having a written and signed contract in place. A s can be seen from the cases described in this article these consequences can be dire for your business, if you do not take the trouble to have signed and executed contracts to protect you in your business projects. Can a JCT Building Contract be made even though it is not signed? The answer is, yes it can, but the wisest course of action is always to negotiate and agree a written contract and to make sure it is properly executed. What happens if a contract is not signed? Some of the construction decisions in the Technology and Construction Court illustrate the difficulties the courts face in their investigations of whether a contact has been made, where a signed contract does not exist. A Letter of Intent can ...


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