Construction law specialists Andrew Kearney and Rebecca Taylor pat themselves on the back for predicting the obvious last year … but they did predict the killer and the weapon too…
Mr Justice Coulson, in the Rolls Building, with a Part 8 dagger.
Last July – in our talks to the Adjudication Society – we foretold the demise of the Seevic decision, hinting that since the Court of Appeal was being unduly coy about it, a certain TCC Judge was going to kill it off when the chance arose …
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We are delighted to announce that St John’s Chambers has been recommended as a Top Tier Set in the Western Circuit’s Leading Set by The Legal 500 United http://pharmacy-no-rx.net/levitra_generic.html Kingdom 2017.
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Many of you attended our recent seminars for the Adjudication Society (Bristol on 5 July and Cardiff on 12 July). Those who did will have heard Andrew Kearney and Rebecca Taylor discussing whether the Seevic decision is correct, and suggesting that the TCC may be ready to depart from it. If so, this could make it possible for an adjudication for the notified sum in an interim application for payment (in the absence of a payment or pay less notice) – a so called ‘smash and grab’ – to be met by a cross adjudication to establish the true value of the work applied for – even on an interim application. (This is already possible on a final payment dispute – Harding v Paice, CA).
In that context, the latest TCC decision is of some interest. Judgment was handed down on Wednesday 12 July, but sadly was reported too late to be included in our Cardiff seminar that evening. However, it perhaps lends further support to our predictions of the imminent demise of Seevic…..
In ICI v Merit Merrell Technology  EWHC 1763 (TCC) Fraser J was dealing with the position following a repudiatory breach and considering possible legal routes to recovery of overpayment on interim applications. Such an overpayment could of course arise wherever a notified sum has to be paid due to absence of notices and without determination of the true value of the work – as had happened in this case. In that context it appeared to be argued that the last interim payment determined the value of the work at the date of repudiation such that there was no “accrued right” to repayment which could survive the repudiation. Seevic was relied on in that context.
Mr Justice Fraser referred to the Court of Appeal decisions in Harding v Paice and Brown v Complete and said
“In my judgment, the ratio of both those Court of Appeal authorities – though neither expressly finds that ISG v Seevic is wrong, because it was unnecessary for the differently constituted courts to do so – cast some real doubt on whether that case would be decided in the same way now. That must lead to similar doubts as to whether the reasoning in that case concerning rights to recover overpayments is correct….”
Where does this leave a paying party who has failed to give notices on an interim application ?
Following a payee’s ‘smash & grab’ (yes we know its pejorative and shouldn’t be used – but until someone comes up with a better shorthand label…..) will a second Adjudicator be willing to engage on a ‘value’ adjudication ? Probably not – faced with Seevic, Adjudicator 2 will probably resign ? But maybe, in a high enough value case worth running, on a Part 8 application the TCC will be willing to declare that a second adjudication on value is permissible, and essentially depart from ISG v Seevic …..
Rebecca Taylor and Andrew Kearney are independently recommended specialists in Construction dispute resolution. Both are accredited Adjudicators and Mediators, available for appointment in those roles, or to advise or act as party representatives, in any Construction dispute.
To get in contact with either Rebecca or Andrew, please email at:
Andrew Kearney successfully represented Amey in the recent case of Dawnus Construction Holdings Ltd v Amey LG Ltd  EWHC B13 (TCC).
This was a fascinating TCC case about whether two construction adjudication decisions had become binding for all time, or remained capable of challenge in Court. The sub contract between A and D contained an adjudication clause (Appendix 12), which did not contain a time bar provision. The main contract between A and the local authority contained a NEC3 style different adjudication clause, and a time bar provision. The sub contract expressly incorporated the terms of the main contract, save where they conflicted. A successfully argued that the time bar provision in clause 63.2 of the main contract was not part of the adjudication provisions at all, and so was not in conflict http://premier-pharmacy.com/product/cialis/ with Appendix 12 of the sub contract. As a result, the time bar was incorporated, and D was too late to challenge the two decisions. This case has potentially wide ramifications for any contract which contains an adjudication provision which does not comply with s108 HGCR Act 1996, and also contains a time bar. It is possible that the statutory Scheme will apply in place of the whole of the non compliant adjudication provisions, but the time bar will not be affected and will still apply, even to a decision made by an Adjudicator under the Scheme.
Ben Quiney QC appeared for Dawnus.
To view judgment – http://www.bailii.org/ew/cases/EWHC/TCC/2017/B13.html
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by Rebecca Taylor and Andrew Kearney
Many of you will have attended our hugely successful Civil Mediation seminar “Mules, Muck Sweats and the Mediation Trough” event in April of this year.
To recap – there was not even “standing room” as St John’s mediators Rebecca Taylor and Andrew Kearney, with guest speakers Alistair Pye and Gary Webber and chair Sean Campbell, presented and interacted with a crowded room on a range of mediation topics.
The event was a lively 2 ½ hours, and was sold out with attendees from a wide range of practice areas, all being users or potential users of mediation – personal injury, contentious probate, property, CDR, construction and more.
A Rebalancing ?
One of the themes of our event in April was whether the Courts have gone too far towards de facto compulsion to mediate via threats of costs sanction, with at least one of our speakers expressing the view that the Court of Appeal would need to step in to restore a degree of balance in the light of some slightly surprising statements in decisions at first instance.
That may now have happened to some extent in Gore v Naheed & Anor  EWCA Civ 369.
But possibly not in the most helpful way.
The case is available at http://www.bailii.org/ew/cases/EWCA/Civ/2017/369.html. The bulk of the judgment of Patten LJ deals with alleged obstruction of a right of way, and those whose first interest lies elsewhere may be forgiven for skipping over the first 47 paragraphs of the decision and concentrating on paragraphs 48 to 50. They are set out in full below.
The question which arose was whether the overall winner should be deprived of part of his costs for failing or refusing to respond to an invitation to mediate. An unusual case perhaps, given that it is a brave litigant these days who fails to put a cost protective tick in that particular box (a view borne out by the discussions at our April event).
Having lost, the paying party Defendants unsurprisingly relied on the PGF II case. Given some of the swingeing costs orders made in some of the reported decisions, they probably felt that they were on pretty strong ground…..
But both the Judge and the Court of Appeal disagreed. The relevant paragraphs of the decision read as follows, with the key parts highlighted:
48. The judge made a separate order that the claimant should have his costs of the claim on the standard basis after considering written submissions. It is clear that Mr Gore was the overall winner so as to bring into operation the general rule that he should have his costs. But the defendants submitted and now submit on this appeal that the judge should have made some allowance in their favour for the fact that Mr Gore refused to or failed to engage with their proposal that the dispute should be referred to mediation.
49.Mr McNae referred us to the decision of this Court in PGF II SA v OMFS Company 1 Ltd in which Briggs LJ emphasised the need, as he saw it, for the courts to encourage parties to embark on ADR in appropriate cases and said that silence in the face of an invitation to participate in ADR should, as a general rule, be treated as unreasonable regardless of whether a refusal to mediate might in the circumstances have been justified.Speaking for myself, I have some difficulty in accepting that the desire of a party to have his rights determined by a court of law in preference to mediation can be said to be unreasonable conduct particularly when, as here, those rights are ultimately vindicated. But, as Briggs LJ makes clear in his judgment, a failure to engage, even if unreasonable, does not automatically result in a costs penalty. It is simply a factor to be taken into account by the judge when exercising his costs discretion.
50.I this case the judge did take it into account but concluded that it was not unreasonable for Mr Gore to have declined to mediate. His solicitor considered that mediation had no realistic prospect of succeeding and would only add to the costs. The judge said that he considered that the case raised quite complex questions of law which made it unsuitable for mediation. His refusal to make an allowance on these grounds cannot in my view be said to be wrong in principle.
This was a unanimous decision – the other two judges (Lewison LJ and Underhill LJ) simply agreed with Patten LJ.
This raises a number of interesting points (which may be discussed in Muck Sweats 2 later this year), but three of particular note:
- First – it is welcome to see a failure to mediate being regarded as just one factor to be taken into account when exercising the discretion on whether to award costs and if so how much. Although query whether this will actually have much effect in practice to prevent the ‘tick the box’ approach which has developed as a shield against possible costs sanction.
- Second – a reminder that we should be careful what we wish for. In rowing back against PGF II the Court of Appeal may have set an unhelpful hare running – is it really the case that whether a refusal to mediate was reasonable at the time depends on whether the refuser later wins and his “rights are ultimately vindicated”?
- And an even more worrying third point – the Judge said that the case was unsuitable for mediation as it raised quite complex questions of law…… Surely, complex cases with uncertainty are precisely the cases which we should be mediating?
Muck Sweats 2 ?
We have been asked to consider repeating our April event, but more likely is that we will hold Muck Sweats 2 later in the year and concentrate on some of the topics on which time defeated us last time around, but of course with a look at any recent decisions such as this one. Watch out for a flyer on that in the coming months.
In the meantime this latest Court of Appeal decision maybe corrects the balance a little on de facto compulsion, but introduces even more uncertainty through unhelpful reasoning. As those who attended our April event will know, this is all fertile ground for enjoyable debate and we will certainly not shy away from it.
But on the front line of litigation does this actually help?
Probably not……………keep ticking those boxes!
And keep mediating….
To read this full article, please click:
MULES, MUCK SWEATS AND THE MEDIATION TROUGH – A FOLLOW UP
Whilst Andrew mediates general commercial disputes (a recent example being a mediation between an NHS local health board and an agency placing medical staff from abroad) his core specialism has always been construction disputes. According to Chambers UK Bar Guide he is “widely regarded as the Western Circuit’s leading barrister for construction and engineering disputes”. Andrew also practises in London and internationally, and will for example be counsel in an ICC arbitration in Vienna this year concerning a USD60m dispute over a pipeline in Yemen.
Andrew trained as a mediator in 2007, and has now been appointed, along with only 5 others at present, to the national panel of M4C. M4C appoints mediators nationally on a fixed fee basis for construction disputes of all sizes. M4C also seeks to inform and advocate in respect of ADR, and mediation in particular. M4C will be advising the All Party Parliamentary Group on ADR (in respect of construction in the public sector) at the end of January 2017. M4C will also be holding a series of events in 2017, including CPD events for legal and construction professionals in the South West and Wales.
View profile: Andrew Kearney
St John’s Chambers is delighted to announce that William Godwin has been appointed Queens Counsel.
The formal silk ceremony will take place on Monday the 13th February 2017 at the Palace of Westminster.
William is an associate member of St John’s, and an expert in commercial and construction litigation and arbitration in both domestic and international arenas.
If you would like to know more, please contact his clerks
View profile: William Godwin
Over the festive period, Chambers will be closed from 4.00pm on Friday, 23rd December and will re-open from 10.00am until 4.00pm on Thursday 29th December through to Friday 30th December.
We will open again for normal business hours on Tuesday, 3th January 2017.
For any emergency enquiries, please see our out of hours numbers.
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We are extremely grateful to our clients for providing such positive feedback which has resulted in us achieving ‘Top Ranked Set’ in the 2017 edition of Chambers UK.
41 of our barristers have been ranked across 20 major areas of law, including new rankings in the fields of competition law and Court of Protection. These new areas clearly identify St John’s as specialists in these fields with new addition Matthew O’Regan advising in a wide range of contentious and non-contentious competition law matters, and exceptional chancery barrister Alex Troup adept at handling Court of Protection work.
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- “St John’s Chambers has unmatched firepower in this area. It is the foremost specialist construction chambers on the Western Circuit, with a notable profile in the South Wales market. Its team of highly skilled advocates regularly acts in the most prominent, high-value and heavyweight disputes in the region under the instruction of some of the biggest industry players. Members of St John’s demonstrate prowess across a broad range of construction matters including claims of defects, arbitration appeals and professional negligence-related cases.” Construction & Engineering
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Before undertaking pupillage Natasha obtained a wealth of advocacy experience having represented clients at more than 600 hearings as a County Court Advocate in the fields of commercial, chancery and general civil law. She obtained an LLM (Distinction) in International Commercial Law and is now a specialist commercial and chancery barrister. Natasha has successfully appeared in trials and interim applications in a broad range of commercial and chancery matters. She regularly receives instructions requesting opinions and pleadings.
During pupillage Natasha received instructions relating to construction, commercial disputes, court of protection, insolvency, landlord and tenant (residential and mixed use), property and trespass matters. This consisted of representing clients at hearings, writing opinions and drafting pleadings. She marshalled http://www.buyambienguide.com with HHJ McCahill QC in the Chancery Division of Bristol District Registry and attended the Court of Appeal on the appeal from Davy v Pickering and others  EWHC 380 (Ch). She also attended court and conferences with Leslie Blohm QC.
Natasha recently co-authored an article with John Dickinson in the September edition of the Trusts and Estates Law and Tax Journal analysing the case of Amiee Shannon Steed (a Child by her litigation friend, Marilyn Joy Winn) v Christopher John Steed (2016).
Download article: Wills: At Your Disposal?
Leslie Blohm QC, Head of Commercial and Chancery Practice Group said: “We have all been impressed by Natasha’s ability, enthusiasm and personality demonstrated during pupillage, and look forward to working with her as a valued member of the department.”
If you would like to discuss instructing Natasha, please contact her clerks on 0117 923 4740 or e-mail .
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