By Vijay Bange and Tanya Chadha
Globally, notable incidents of freak weather events giving rise to destruction and death have dominated the news. The increasing frequency of these erratic climate events has undoubtedly raised awareness of global warming and, on a political level, the need for states to move quicker towards green energy and the reduction of carbon emissions. Global warming is an inescapable issue that affects us all and which has forced governments to elevate this to the top of the agenda, filtering down to economic policies that will touch upon most industry sectors.
On 31 October 2021, representatives from over 200 countries are set to descend on the Scottish city of Glasgow for the United Nations climate change conference; the 26th Conference of the Parties (COP26). During this global climate summit, world leaders are expected to talk all things climate change. Commitments have already been made to aggressively tackle global warming and the reduction of carbon emissions. Energy is therefore likely to be high on the agenda. Continue reading “Earth, Wind and Fire- Energy and the Green Agenda. The New Industrial Revolution?”
By Matthew Friedlander and Tanya Chadha
The contractual matrix of commercial construction projects commonly includes collateral warranties. Collateral warranties typically grant a contractual cause of action to third parties (such as tenants or end-users) with an interest in the project who may not otherwise have a contract in place with parties that are designing, constructing or providing professional advice on the project. For the beneficiary, a collateral warranty can therefore be invaluable.
Recently, for example, collateral warranties have proven to be extremely useful for long leaseholders and tenants in private residential developments where cladding and fire safety issues have been discovered. Where such a warranty exists, leaseholders (as the beneficiaries) have been able in some cases to rely upon collateral warranties as a means of recovering losses, or compelling the original contractors or designers to rectify those fire safety defects in circumstances where the leaseholder was not involved in the original construction of the development.
Continue reading “Not all Collateral Warranties are Construction Contracts”
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
Continue reading “The Digital Age Still Needs Infrastructure”
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.
Continue reading “Luck of the Law: Lessons to be Learned from Green v Petfre”
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.
Continue reading “Climate change vs infrastructure projects- Can they co-exist?”
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.
Continue reading “GSEL v Sudlows: Adjudication enforcement, natural justice and challenging a decision”
By Vijay Bange
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”
By Steve Nichol and Tanya Chadha
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”
By Steve Nichol
The directors of HS2 Ltd must be firm believers of the old adage that no news is good news.
It’s no secret that the project has been beset with controversy right from the start – foremost amongst these being the budgetary underestimates that prompted criticisms of both the government’s procurement model for major infrastructure projects and the competence of those at the helm of the delivery company. So, when the Project was hit with a triple-whammy of bad press last week, those embattled directors and their government supporters must have needed it like a hole in the head. Continue reading “Protests, Prosecutions and Pandemics: Will COVID kill HS2?”