In a recent case, the Outer House of the Scottish Court of Session considered whether Clause W2.4 of the New Engineering Contract 3, in the form agreed between the parties, operated as a contractual bar to preclude resorting to the courts (or arbitration) if a dispute between the parties which fell within the scope of Clause W2 had not first been referred to adjudication.
This article discusses an adjudication enforcement application to enforce a decision dated July 2017. The adjudication followed the failure of Benchmark to serve a pay less notice against Aqua's final interim payment application. The sum awarded did not represent the full amount due to the claimant as there was a retention payment of £48,000 to consider following completion of warranty works.
In a recent application, Platform tried to enforce an adjudicator's decision in the sum of £420,000 plus value added tax. In the adjudication, ISG had challenged Platform's case that ISG had repudiated the subcontract, saying instead that Platform's own purported rescission of the subcontract was unlawful with the result that ISG's termination was itself valid. The adjudicator found in favour of ISG on termination and went on to decide the value of any sums payable as a result of that decision.
The Court of Appeal recently considered whether milestone payments in a construction contract constituted an adequate mechanism for payment in terms of the Housing Grants, Construction and Regeneration Act 1996, as amended. The decision is a helpful reminder that where standard payment terms are replaced by bespoke amendments as to stage or milestone payments, it is imperative to ensure that they are properly drafted.
A court recently considered the entirety of a building material supplier's actions – including its refusal to sign a draft deed and assertions that its terms were unacceptable – and deemed it impossible to see the conduct as an agreement of the totality of the draft deed's terms. The court further held that the main contractor's conduct had not amounted to an agreement to abandon some terms of the draft deed while accepting that the others had contractual effect.
In 2017 the International Federation of Consulting Engineers (FIDIC) finally unveiled the Second Edition of the 1999 Rainbow Suite, Red, Yellow and Silver Books. This article examines how the FIDIC form deals with time and includes an appendix detailing the changes made to Clause 8, the primary clause which deals with time or 'Commencement, Delays and Suspension' from the original 1999 contract.
An application was recently made to restrain notice being given of a winding-up petition which sought payment of some £820,000 following an adjudicator's decision in respect of goods supplied and services rendered for the development and conversion of Victory House. The adjudicator had rejected Victory House's argument that it was not liable to pay the sum identified in the interim application because the parties had entered into a memorandum of understanding which provided for other payments to be made.
CBUK and Sarens recently sought a determination, following an adjudicator's decision, of a dispute over the terms and interpretation of a subcontract. Sarens had been engaged by CBUK to provide cranes and other equipment for the installation of six bridges along the M6 link road. CBUK had been engaged as subcontractor to Costain under a modified NEC3 contract. The dispute was about what, if anything, CBUK and Sarens had agreed about the provision of liquidated damages.
After Gosvenor agreed to perform certain cladding works for Aygun, disputes arose and Gosvenor applied to enforce an adjudicator's decision. Aygun accepted that adjudicators' decisions will be enforced by the courts, regardless of errors of fact or law, but alleged fraud on the part of Gosvenor, stating that "a substantial proportion" of the adjudication award had been based on sums which were fraudulently invoiced. However, no allegations of fraud had been raised in the adjudication proceedings.
In 2014 OSI and Lagan entered into a contract for the design and construction of a new production facility. During the course of the contract, OSI's agent issued certain instructions and in July 2016 OSI gave notice to Lagan that it was in default in failing to comply with four of these instructions. OSI said that Lagan did not remedy the default and accordingly gave notice of termination. In a preliminary hearing, Lagan held that two of the contract instructions had been invalid.
In a recent judgment in an ongoing dispute about the quality of steel monopiles at an offshore wind farm, a judge had to consider claims for overhead and profit. The plaintiff had claimed a percentage for overheads at a rate of 4%, which the judge was reluctant to accept. While the judge suspected that the plaintiff may well have incurred increased overhead costs as a result of breaches of contract, he was not prepared "to pluck a figure out of the air".