Articles

Assuming that the sub-contract incorporated the arbitration agreement in DOM/1, the arbitration proceedings brought by the sub-contractor should not be stayed by the court to allow the contractor to adjudicate its claim for liquidated damages

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The employer was not entitled to set off its alleged entitlement to liquidated damages against the specified sum awarded by the adjudicator to the contractor even if it was so entitled

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There was an arguable case as to the question of jurisdiction on the ground that the contract did not comply with section 107 of the Construction Act by reason of there being two material terms of the contract agreed orally which were not reduced to writing

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It could not be said that the contractor's defence was bound to fail by reason of its withholding notices not being effective since there had been no attempt to attribute the individual sums sought to be withheld to individual grounds for withholding

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As the subprime crisis in America sweeps across the Atlantic causing a significant credit squeeze in the UK, one of the first sectors in the firing line is construction.
Construction across the UK appears to have fallen victim to the economic uncertainty that exists and latest figures show the sector shrinking for the first time in more than six years.

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The employer company was not a residential occupier with the result that the contract was not exempt from the application of the Construction Act 1996 by the operation of section 106(1)(a)

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Akenhead J in this case reviewed the caselaw on what constitutes "a dispute" for adjudication and arbitration purposes. In particular he considered the statements of Judge LLoyd in KNS Industrial Services (Birmingham) Ltd -v- Sindall Ltd (2001), the Court of Appeal's decisions in Collins (Contractors) v Baltic Quay Management (2004) and Amec Civil Engineering v Secretary of State for Transport (2005).

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Regular readers of this column will know that I have something of a passion for mediation. If I ruled the world every day would be Christmas (only joking – you should see Mr Vinden’s credit card bills this year) and I would compel every party to every civil dispute to try mediation as a pre-cursor to litigation in the Courts. Why? -because I am convinced that mediation serves the parties better than the obscenely expensive alternatives.

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When delay occurs on a construction project the cause of delay is either an event for which the Contractor is responsible, one for which the Employer is responsible, or due to factors which are beyond either party’s control. This third class of causation of delay is said to be neutral in terms of causation simply because it is a delay that neither the Employer nor the Contractor is responsible for having caused.

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I am pretty sure that all the readers of this publication will know something about withholding notices. The requirement for a paying party to issue a written withholding notice where part or all of a payment is to be held back from a Contractor or Sub-Contractor is set down in Section 111 of The Housing Grants Construction and Regeneration Act 1996 (“The Act”).

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Pre purchase condition survey of a large industrial building.

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Unless you have just spent the best part of 10 years living in outer Mongolia you will be aware that The Housing Grants Construction and Regeneration Act (1996) (“The Act”) changed the commercial life of Contractors and Sub-Contractors working in the UK forever when it was introduced here on 1 May 1998.

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The sub-contractor was not entitled to the declaration it sought, namely that the contractor would not be entitled in the adjudication it had begun against the sub-contractor to recover damages in respect of its claim that the sub-contractor was in breach of contract by producing defective floors

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The omission from the contractor's notice of adjudication of the name of the owner of the contractor's business as the contracting party did not invalidate the entire adjudication proceedings for non-compliance with paragraph 1(3) of the Scheme for Construction Contracts

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The adjudicator's decision that the contractor had wrongly withheld various amounts from the sum otherwise due to the sub-contractor in respect of an interim payment application should be enforced by requiring the contractor to pay to the sub-contractor the total sum withheld

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The employer's jurisdictional challenge based on there being no contract in writing could not succeed in the court enforcement proceedings on the basis that the employer failed to reserve its position in the event of the adjudicator rejecting the challenge

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Sometimes it seems that Clients want it all. The cheapest price, the shortest programme, the Contractor assuming as much risk as possible……sound familiar? And then to top it all, the subject of parent company guarantees or other third party guarantees is raised.

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The contractor was entitled to interest on the sum awarded by the adjudicator for the period of time ordered by the adjudicator notwithstanding that it could properly be said that the contractor was entitled to interest for a longer period of time

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The statement of the contractor's director in the adjudication that there was an oral variation to the contract was not denied by the employer in the adjudication and therefore constituted a written agreement under section 107(5) of the Construction Act

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The court should enforce the adjudicator's decision awarding the contractor the full amount of its interim payment application under JCT 98 WCD where the employer had failed to give notice under clause 30.3.3 specifying the amount of the payment proposed to be made

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