Construction Foundations newsletter - February 2016

• United Kingdom

• Construction and engineering - Foundations
• Education - Briefings

18-02-2016

Welcome to Foundations, our construction and engineering monthly newsletter. Foundations will update you with details of what we think are the top court cases decided in the previous month, a summary of important legislation changes or proposals, and a paper providing insight and guidance on a particular area of construction law and practice in the UK and internationally. We hope you find our newsletter useful and informative.

UK insight

Mediation: get well sooner?

Disputes can threaten the health of a business. Mediation can offer a cure and sooner than you may think. Mediation seems to be increasingly popular as a method of dispute resolution.  It is not hard to see why - it offers a quick, cheap and amicable “get out”.  With a relatively high success rate, it is a valuable alternative to long, expensive litigation or arbitration.

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International insight

Interpreting time bars, notices and termination provisions in FIDIC

Parties to the FIDIC form of contract typically resolve disputes by reference to confidential dispute adjudication board or arbitration proceedings; seldom do we see reported decisions on FIDIC cases.  However, 2014 and 2015 gave us a rare and helpful glimpse as to how certain FIDIC provisions will be enforced by the courts.

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Top cases

Adjudicator did not ‘predetermine’ issues - natural justice arguments

John Sisk & Son Limited (“Sisk”) has successfully obtained an order for summary judgment in adjudication enforcement proceedings in the Technology and Construction Court.  The judgment of Edwards-Stuart J was handed down on 25 January 2016.  Eversheds LLP and Nicholas Collings of Atkin Chambers acted for Sisk.

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A cautionary tale: construction professionals beware

The case of Burgess & Anor v Lejonvarn [2016] EWHC 40 (TCC) serves as an important reminder that a duty of care will apply to professional consultants regardless of whether payment has been or is expected to be received for advice or services rendered.

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The potential limitations of fixed payment schedules

The recent case of Grove Developments Ltd v Balfour Beatty Regional Construction Ltd [2016] EWHC 168 (TCC) exposes the harsh reality of what can happen when a contractor agrees to a payment schedule that does not adequately reflect the practical or commercial difficulties that a project might face. 

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Performance bonds and the importance of careful drafting

The case of Lukoil Mid-East Ltd v Barclays Bank Plc [2016] EWHC 166 underlines the importance of ensuring that performance bonds, including on-demand guarantees, are carefully drafted, where a disagreement over the interpretation of the  terms can often prove to be an unnecessarily costly and time consuming exercise to resolve.

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Webinars to watch

Case law update

This webinar provides a case law update on the following key cases:
1. Northrup Grumman Mission Systems Europe v BAE Systems (Al Diriyah) Limited (looking at contract interpretation and call off contracts);
2. RMP Construction Services Limited v Chalcroft Limited (looking at challenging an adjudicator’s decision); and
3. Marks and Spencer plc v BNP Paribas Services Trust Company (Jersey) Limited (looking at implying terms into commercial contracts);
together with an update on the Modern Slavery Act.

Watch the full webinar here