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Sat March 17 2018

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Construction Law Updates

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Rights and Obligations under Back-to-Back Contracts

4 Oct 2011: The parties’ dispute concerned the extent of the coverage of this alternative design for demolition and hoarding works. The letter of award for the subcontract stated that it was to be a lump sum fixed price contract and back-to-back with the main contract. Brington maintained that Cheerise was responsible for the design as this was a back-to-back contract. more »

No entitlement to damages for breach of land swap agreement

27 Sep 2011: but ... Failure to provide adequate alternative site was a breach... Both parties were house builders. more »

Surveyors Concurrently Liable in Tort and Contract

13 Sep 2011: Drivers Jonas has been held liable for damages of £18.05m for breach of duty of care in valuation of commercial property. The surveyors had held themselves out to be specialists and the claimants had been entitled to rely upon their advice when deciding whether or not to acquire a factory shopping outlet. more »

You can't blame it on us

5 Sep 2011: A hair dressing salon sued a contractor when a fire caused by a pump which the contractor had installed damaged the salon and spa. The contractor tried to pass on the blame to the supplier and manufacturer, but the court found that the contractor's omissions meant that it could not avoid liability more »

Contractor must lead evidence to prove that a clause is a penalty

8 Aug 2011: It was for the contractors challenging a clause which they claimed was a penalty to prove that it was not a genuine pre-estimate of damages. more »

Contractor cannot rely upon the prevention principle

1 Aug 2011: The Technology and Construction Court has thrown out a contractor's attempt to rely upon the prevention principle to excuse the delay on a project. The contractor alleged that the delays had been caused by the employer and the statutory undertakers. more »

Adjudicator's decision based on without prejudice material will not be enforced

22 Jul 2011: The Technology & Construction Court has ruled that an adjudication decision based on without prejudice material will not be enforced by the courts. When "without prejudice" communications are presented in court, because judges are legally qualified, they can usually put them out of their mind. In adjudication, however, because most adjudicators are not legally qualified, there is a sense of "unease" that such material might influence the adjudicator. For this reason, without prejudice communications should not be put before an adjudicator, and lawyers who do so may face professional disciplinary action. more »

Dissenting party still liable for adjudicator's fees

12 Jul 2011: A party who disagreed with the amount of fees charged by an adjudicator was still liable to pay them.By taking part in the adjudication, it was taken that they had agreed to the fees. As long as the hourly rate claimed by an adjudicator is not clearly outside an overall band of reasonableness, there would be no basis to interfere. more »

But I thought you meant ...

4 Jul 2011: Morgan Utilities thought they had an agreement with Scottish Water on how they were going to be paid, but no one wrote it down ..... more »

Contractor seeks injunction to remain on site after receivers called in

29 Jun 2011: A contractor has failed to obtain an injunction restraining a receiver from taking over a development it was working on. Moylist claimed it had a licence to access the site as long as the contract remained in place, and it had not been terminated. more »

Adjudicator can consider counterclaim without withholding notice having been issued..

22 Jun 2011: A court has held that an adjudicator was wrong not to consider a party's counterclaim because it had not issued a withholding notice against an interim certificate. However, he would only be able to consider counterclaims which did not relate to the interim certificate. more »

Contractors liable for Network Rail loss

7 Jun 2011: Two companies have been found liable for the financial loss suffered by Network Rail when its apparatus was damaged due to the negligence of their drivers. The damage caused disruption to the rail service and made Network Rail liable to the Train Operating Companies under their Track Agreements. The companies were held to be liable for that financial loss. more »

Directors Failings ~ Corporate Manslaughter

31 May 2011: Dr Simon Joyston-Bechal heads the Pinsent Masons LLP national specialist health and safety defence team and was engaged in defending Cotswold Geotechnical Ltd and its managing director in the first prosecution to be brought under the new corporate manslaughter legislation. more »

An employer's liability for an independent contractor's tort

30 May 2011: Tinseltime's machinery was damages by dust caused by the contractor working for Denbighshire County Council and the Welsh Assembly Government cut concrete blocks. Tinseltime brought an action for damages, loss of profit and loss of management time against all three. more »

Your Serve

24 May 2011: Lanes tried to argue that Galliford Try's referral and statement of case in the adjudication had been served out of time. The parties' adjudication was being run under the ICE's Adjudication procedure. The court rejected the submission, finding that the documents had been served within the required two days over a weekend when the clocks were changed to British Summer Time. more »

This is the limit

17 May 2011: The court has thrown out home owners' claim that engineers were negligent because they did not commence the action in time. They should have started proceedings as soon as they suspected that there was a defect which required further investigation. more »

No liability under the defective premises act

9 May 2011: The Court of Appeal has overturned a judge's decision that the conversion works on a house were so extensive as to change its identity and so make the project manager liable to the purchasers under the Defective Premises Act 1972. more »

Breach of an adjudication agreement is not repudiatory

28 Apr 2011: The Technology and Construction Court has ruled that although a party may be in breach of an adjudication agreement by failing to follow the procedure contained in the contract, such a breach cannot be repudiation of the agreement more »

Don't leave it too late to bring a claim for defects

12 Apr 2011: The decision in Clinton Eagle v Redlime Ltd., [2011] EWHC 838 (QB) demonstrates the importance of acting quickly to bring a case for defective works. It all hinges on the date when the claimant is deemed to have "constructive knowledge". more »

Communicating effectively under the NEC

12 Apr 2011: Notices " in particular their proper service " continue to be a hot topic following the decision by the Scottish Courts in Education 4 Ayrshire v South Ayrshire Council. more »

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