As we begin the summer and hopefully step on the road to freedom from COVID restrictions, here is an overview of issues to be aware of in the coming months. Continue reading “Employment Update, June 2021”
Mr Justice Fraser’s decision in Multiplex Construction Europe Ltd v Bathgate Realisation Civil Engineering Ltd and Others is one of the more curious decisions you will ever read.
Not that I would particularly encourage anyone to read it. The case necessitated some pretty comprehensive and in-depth legal analysis that means the judgment runs to some 206, fairly dense, paragraphs, and an Appendix; I would challenge even the most avid consumer of legal treatises to read the whole thing in one sitting without their eyes glazing over at some point. Helpfully, my colleague Vijay Bange has already produced a very useful summary of the decision and its legal implications here.
However, the density and depth of the judgment does not mean it is without interest; far from it. In fact I suspect this case will prove to be one of the more fascinating legal tangles the Courts will be asked to unravel this year. This article looks at some of the more curious aspects of this dispute, away from the key aspects of the case. Continue reading “Multiplex v Bathgate: Legal Riddles and Unsolvable Problems”
I am an unashamedly massive fan of the Back to the Future film franchise. Yes, even the sequels.
One of my favourite lines from the franchise is spoken at the end of the first film and the beginning of the second. Doc, Marty and Jennifer are about to travel to the distant future (2015, to be precise). When Marty points out there might not be enough road to get up to 88 mph, Doc flips down his brushed aluminium shades and intones: “Roads? Where we’re going we don’t need roads.” And the DeLorean flies off to the future thanks to an early 21st century hover conversion.
Brings a smile to my face every time
They say that the house always wins, but as the recent case of Andrew Green -v- Petfre (Gibraltar) Limited t/a Betfred illustrates, even the house can get caught out sometimes.
When lucky punter Andrew Green won over £1.7m following a 5 ½ hour stint on Betfred’s ‘Frankie Dettori’s Magic Seven Blackjack’ game in January 2018, he was dismayed to find out a few days later that the company was refusing to pay out, claiming that there was a glitch in the game, and that the house rules stated that, in those circumstances, Betfred were not required to pay. Mr Green sued, and the matter eventually ended up in Court. Following a hearing on 15 October 2020, Mrs Justice Foster DBE granted Mr Green summary judgment and awarded him his winnings.
A step too far?
- Third party consultants, and duty of care in tort.
- No duty of care owed in tort by a third party design consultant to a contractor with no direct contractual nexus.
Large infrastructure projects are often subject to intricate contractual relationships between the relevant stakeholders, and this will also include collateral warranties to cover any potential gaps in liability to mitigate potential effects of one of the participants in the contractual matrix becoming insolvent. Parties lower down the contractual chain may engage their own designers or consultants to discharge their obligations up the contractual chain. An interesting scenario arose in the recent case Multiplex Construction Europe Ltd v Bathgate Realisations Civil Engineering Ltd (Formerly Dunne building & Civil Engineering Ltd (In administration) (2) BRM Construction LLC (3) Argo Global Syndicate 1200 (2021) , and the two issues that were heard by way of preliminary issue.
- The main contractor sub-contracted certain design works to the sub-contractor.
- In turn the sub-contractor sub-contracted certain design work to the designer (Second Defendant).
- There was a requirement pursuant to BS 5975 for certain independent design checks and approvals to be done by an independent third party. For that reason, and to discharge its contractual obligations to the main contractor, the sub-contractor engaged a firm of consulting engineers to do this, and issue the relevant certificates.
- The contractor alleged that defects issues arose because of design issues.
- The contractor issued proceedings against the sub-contractor and the designer.
- Judgment in default was obtained against both.
- The sub-contractor was in administration. The designer was uninsured. The consultant had gone into liquidation.
- The contractor pursued the consultants insurers.
- There were two preliminary issues that were dealt with by His Honour Judge Fraser, sitting in the TCC:
The Guardian on Tuesday 30th March had an interesting article entitled “UK criticised for ignoring Paris climate goals in infrastructure decisions”. In summary, various luminaries, scientists, legal and environmental experts, have written a letter and to come out to say that:
- The case concerning the expansion of Heathrow Airport, and the decision by the Supreme Court last year, has set a dangerous precedent, in effect allowing national infrastructure projects to go ahead at the expense of the agreed targets set in the Paris Agreement. In particular to hold global heating to well below 2C above pre-industrial levels.
- The UK Government and the Supreme Court has obligations under the Human Rights Act 1998 (to safeguard the right to life).
- Courts should be forcing Governments of signatory states to adhere to the commitments of the Paris Agreement.
- The Cop26 is in the UK this year, and the UK should be championing the Paris Agreement.
- The plans for new coal mine, new licences being issued for oil and gas exploration in the North Sea, scrappage of the Governments main green recovery measure, and the green homes grants for insulation and low carbon heating are concerning developments.
Several fund managers have elected not to participate in Deliveroo Holdings plc’s (Deliveroo) impending initial public offering (IPO), with concerns over the company’s treatment of workers and the dual class share structure. The roster includes Legal and General Investment Management, which is the UK’s largest fund manager with £1.3tn of assets under management. Similarly, M&G, Aberdeen Standard Investments and Aviva Investors have told the Financial Times that they too will “shun” the listing (“Legal and General joins investors shunning Deliveroo IPO”, Financial Times, 25 March 2020).
Deliveroo is a popular online food delivery company founded in London. Customers use an app or website to order food from grocers, local restaurants or ‘ghost kitchens’ and the food is delivered by self-employed bicycle or motorcycle couriers. Revenue is generated by charging fees to both restaurants and customers.
Adjudication can be a frustrating experience, particularly for those who have been faced with a decision of the adjudicator that is quite obviously (to you) wrong, but nonetheless enforceable.
This situation arises because it has long been accepted that, in adjudication, “the need to have the “right” answer has been subordinated to the need to have an answer quickly…” per Chadwick LJ in Carillion v Devonport Royal Dockyard  EWCA 1358.
The Court’s stance on this issue is born from the original intent of the statutory scheme, which was to provide a means for contractors and subcontractors to address cash-flow problems caused by illegitimate delays or refusals to pay. In order to achieve that, adjudication decisions have to bear the weight of authority, otherwise every adjudication decision would immediately be challenged by the losing party.
The Courts also take into account the fact that the adjudicator is tasked with deciding often very complex and detailed disputes in a very short period of time. Errors in decision-making from time to time are therefore inevitable, but the Courts have determined that that shouldn’t be allowed to undermine the process.
There was considerable interest as to what more the Government will do in its effort to tackle the issue of high rise residential buildings with dangerous cladding, and further measures to help the plight of long leaseholders who are facing significant costs to undertake necessary fire safety remedial works.
On Wednesday 10th February, Robert Jenrick, the Housing Secretary announced that in addition to the £1.6bn the Government had pledged last year for removal of dangerous cladding, a further £3.5bn will be set aside. Is this enough to fix what is mooted to be a £15bn problem? Continue reading “UK Construction & Engineering: Cladding Crisis and Latest Government Intervention”
Cairn Energy’s dispute with the Indian Government has made headlines across the globe. The case serves as a useful reminder to foreign investors of the benefits of using bilateral investment treaties to obtain relief in circumstances where they have been unfairly treated by governments in foreign jurisdictions.
The origins of this dispute lie in a separate, but similar case between Vodafone and the Indian Government, arising out of Vodafone’s purchase of a majority share of a company, Hutchison Whampoa, in 2007. Hutchison owned substantial assets in India, and the Indian Government contended that Vodafone owed capital gains and withholding tax, based on India’s 1961 Income Tax Act. Vodafone disputed the Government’s interpretation of the Act. Continue reading “Cairn Energy v India: A lesson in BIT rights and enforcement”