Summer 2014

Abstract

I attended the ICE Alternative Dispute Resolution Workshop held in January. It was an informative and compelling workshop, and for me provided the additional bonus of obtaining feedback on Construction Law Quarterly One specific comment was that there ought to be more written on international issues (especially since many readers are involved in projects in the Middle East) and more written on arbitration. I have therefore devoted considerable space in this issue to providing an ‘arbitration update’ that takes in the UK, the United Arab Emirates, Qatar and Japan. I have also chosen to report a case that examines how a fitness-for-purpose obligation works in circumstances where the contractor is required to follow a particular specified design code. The case has significant legal, technical, engineering and commercial implications for readers with specific sector interest in the design and construction of so-called ‘grouted connections’ in offshore wind turbine foundations. The court supported the proposition that the existence of an express warranty of fitness for purpose by the contractor can trump the obligation to comply with the specification, even though that specification may contain an error. Next we look at two cases dealing with statutory adjudication. The first, Laker Vent Engineering Ltd v. Jacobs E&C Ltd is likely to be followed, discussed and debated in a number of subsequent cases. It deals with whether a general reservation of position can still allow an unhappy party to resist enforcement in circumstances where it has sought to apply the slip rule or made payment; what is the ‘site’ in the context of the exception discussed at section 105(2) of the Construction Act; and whether an adjudication relating to a project in Scotland can use the English scheme in circumstances where the governing law is that of England and Wales. The second case, University of Brighton v. Dovehouse Interiors Ltd, looked at what commences adjudication proceedings – the notice of adjudication or the referral? As readers will be aware, this issue becomes very important in the context of conclusiveness of final certificates. Finally, we end with an excellent article from David Sears QC. David looks at 199 Knightsbridge Developments Ltd v. WSP (UK) Ltd, a case which highlights the fact that it will not always be a defence to a professional negligence claim to do what others have been doing unquestioningly for some time. The case also re-emphasises the need for a designer to keep a design under review, and to advise the client whenever he or she becomes aware of new information that should lead to a revision of the design.