CIOB

We are pleased to announce that as from 1 January 2001, Fenwick Elliott are to provide a free legal advice service to members of the CIOB.

The terms of the arrangement are that we will offer members up to 30 minutes of free legal advice. Those who belong to the CIOB will be receiving further details shortly.

In addition, we will provide editorials for each issue of Contact, the CIOB members' newsletter and regular articles to Construction Manager magazine. We will also provide speakers for CIOB branch meetings.

If you require any further information please contact Victoria Russell.

Adjudication Update

In Karl Construction (Scotland) Ltd v Sweeney Civil Engineering (Scotland) Ltd, Karl failed in its attempt to obtain Judicial Review of an adjudicator's decision on the basis that she had acted ultra vires (i.e. had gone beyond the limits of the reference) in finding that the payment provisions of the sub-contract were not compliant with the Scheme for Construction Contracts (Scotland) Regulations 1998. The challenge was based on what precisely the dispute was that had been referred.

It is clear from the terms of his judgment that there was a degree of doubt in the mind of Lord Caplan generally about the procedure adopted in this particular adjudication. Nevertheless perhaps because the Notice had not been drafted by legal advisors he adopted a broad and not a narrow approach to interpreting what had been referred.

That said, this case again reinforces the requirement for Notices of Adjudication to be carefully drafted so that the dispute is clearly and unambiguously identified. If it is not there is a significant risk that you will not get what you are looking for.

For a full judgment see www.adjudication.co.uk.

The decision of MCP to guard against the millennium bug and build a stand-by power generator has lead to another decision in the TCC on the meaning of "construction operations". In ABB Zantingh Ltd v Zedal Building Services Ltd, ABB sought an order that agreements between the parties for the supply, installation, labelling, termination and testing of field wiring in connection with the installation of standby electricity generators were not construction contracts as defined by the HGCRA.

ABB claimed that works on a site where the primary activity is power generation are excluded by s105(2)(c) of the HGCRA. Zedal said that the primary activity of the site was printing. Thus the works in question were included within the scope of the Act. HHJ Bowsher QC agreed with Zedal and held that, on the facts of the case, the HGCRA applied.

He also commented that in the circumstances of this particular case, the parties were right to seek a declaration from the Court first. Had the adjudicator been asked to decide the point it was very likely that the matter would have ended up in court in any event.

Human Rights

In four related decisions the Divisional Court has held that the right of John Prescott, the Secretary of State for the Environment to "call in" planning applications and decide them himself was incompatible with his role as a planning policy maker and so was in breach of Article 6 of the Human Rights Act.

This demonstrates the possible significant problems, which can be caused by the HRA. Since, whilst decisions made before the introduction of the HRA on 1 October 2000 are probably still valid, those planning decisions made by the Secretary of State since the introduction of the Act could well be open to challenge. Until the situation has been resolved other planning appeals are effectively in limbo.

Perhaps unsurprisingly, this matter is going to be appealed to the House of Lords.

Other Cases From the TCC

There has been a change in personnel at the TCC. Mr Justice Dyson has been promoted to the Court of Appeal and replaced as head judge at the TCC by Mr Justice Thayne Forbes who has returned to the TCC from the Queen's Bench Division.

There have been a number of cases arising out of the building of the Royal Brompton Hospital. One which recently came before HHJ Seymour QC dealt with allegations that the architect and project manager had been negligent in granting extensions of time to the contractor. The relevant contract was the JCT "Local Authorities With Quantities". Clause 25.3 provided that where "relevant events" occur and where those relevant events were likely to cause completion of works as a whole to be delayed beyond the completion date, an extension of time could be granted.

The judge took the opportunity to restate what a claimant in a professional negligence case would need to prove namely:
(i) what, at the material time, were the standards of ordinarily competent members of the relevant profession in relation to whatever it is which it is alleged that the defendant should have done, but failed to do, or did, but should not have done;
(ii) what it is that the defendant actually failed to do, or did, as the case may be; and
(iii) by a comparison of (i) and (ii) above, that the defendant fell below the standards of the ordinarily competent member of his profession in respect of the matter or matters complained of.

Here, the judge, despite expressing doubts that the express wording of clause 25 required that the progress of works were delayed by the late access, accepted evidence from a body of opinion within the construction industry that it was general practise to grant extensions of time automatically where access to a site was delayed notwithstanding the express wording of clause 25.

John Young & Co (Kelvinhaugh) Ltd v The Rugby Group plc shows that you can get swift justice from the TCC in a variety of instances and not just those relating to adjudication. Here in a case concerning non-payment of an application for payment on a contract dating before 1 May 1998 and so before the HGCRA, the Claim Form was issued on 5 September 2000. An application for summary judgment pursuant to CPR 24 was heard on 15 December 2000. Judgment for the Claimant was given fours days later.

In New Islington Hackney Housing Association Ltd v Pollard Thomas & Edwards, Mr Justice Dyson held that an architect's liability (in either contract or tort) in respect of the introduction of a defective sound insulation design would accrue at the date of practical completion or when the relevant properties were handed over to the Housing Association.

"Maxhealthandsafety.com"

Max Health and Safety is a concept designed by the e-commerce arm of Alfred McAlpine plc. It is designed to help the busy manager to implement a concise, efficient Office Safety Management system based around European Laws and Legislation.

Amongst the features offered are the generation of model health and safety risk assessments specifically to suit your types of offices, rooms and spaces, the formulation of a system of checks and procedures to support the model risk assessments and the provision of a desktop diary to prompt the recommended actions. There is also an office compendium which contains information on staff inductions, manual handling, emergency arrangements and some helpful hints on how to get the best from the system.

Fenwick Elliott are pleased to provide a regular legal update on the site specifically tailored to health and safety issues. For more information, log in for a virtual tour of the site at the above address. The site went live on 10 January 2001.

M4I

Fenwick Elliott have now joined Movement For Innovation (M4I), the organization which, as many of you probably know, has been in operation since November 1998, promoting and encouraging radical innovation in the UK construction industry.

More than 400 leading companies, including clients, contractors, consultants and suppliers, are involved with M4I; each member has to demonstrate a commitment to the principles of Rethinking Construction, which arose from the work of Sir John Egan's Construction Task Force. If you require any further information please contact Victoria Russell.

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