Building Voices

Podcast No.13 in the CMS Building Voices series considers a recent decision of the Scottish Courts, in which enforcement of an Adjudicator’s decision was successfully resisted on grounds of material breach of natural justice. In the matter of Van Oord UK Limited v Dragados UK Limited, the Court of Session refused enforcement on grounds that the Adjudicator’s decision had materially departed from the parties’ submissions and consequently deprived Dragados of an argument that could have altered the outcome.

While considering why Dragados was able to successfully resist enforcement on this occasion, the podcast also serves as a healthy reminder that courts are typically reluctant to do so.

To read more about the decision, please see the judgment here and our recent article here.

• loss of value;
• loss of opportunity; and
• loss of profit claims.

Podcast number 11 in the CMS ICE Disputes Building Voices podcast series is a review of the recent changes to witness statements coming from Practice Direction 57AC and in particular the guidance given in Blue Manchester Ltd V BUG-Alu Technic GmbH [2021] EWHC 3095 (TCC), one of the first cases to look at the changes and requirements of the new Practice Direction in detail. This Practice Direction and the case are important for anyone involved in the process of witness statements, either taking them or giving them.

The podcast covers:

• the six key principles to take away from the case;
• the new limited role of documents in witness statements;
• the approach of the judge in Blue Manchester Ltd V BUG-Alu Technic GmbH; and
• key practical tips to make taking witness statements as smooth as possible.

To read more about the decision please see the judgment in Blue Manchester V BUG-Alu Technic here.

The case of Mansion Place Ltd v Fox Industrial Services Ltd is also recommended, with the judgment accessible here.

In the latest episode, we review the recent TCC decision in Downs Road Development v Laxmanbhai Construction which is the first to consider the subjective requirement for a valid payment notice under the Construction Act. This case is important for anyone involved in payment under construction contracts, looking in depth at the payment regime within the Construction Act and focusing in particular on the requirement for an issuing party to have a genuine belief in the sum stated as due.

The podcast covers:

• a recap of statutory requirements for payment notices under the Construction Act;
• the Downs Road decision – the need for a genuine belief in the sum considered to be due;
• why this is different to previous cases;
• what parties need to do now; and
• the implications going forward.

Episode ten is available to listen to here. You can listen to all episodes in the Building Voices podcast series here.

In particular, they discuss the 2020 ICSID tribunal decision of Staur Eiendom AS, EBO Invest AS & Roxy Holding AS v Republic of Latvia. This decision, although not itself related to the COVID-19 pandemic, is very relevant to the economic upheaval wrought by the pandemic and the consequent reappraisal of many infrastructure projects across the globe.

The podcast provides a preview to the CMS Annual Review of English Construction Law Developments 2021.

Podcast number 8 in the CMS ICE Disputes Building Voices podcast series is a discussion with Shona Frame, a partner in the CMS ICE Disputes team and Duncan Turner, a partner in the CMS Technology and Data team about technology and data in construction disputes. We consider the increasing amounts of data being generated by technologies on construction site, the implications for parties to a project and what that means in a dispute, including:    

• why we’re looking at technology and data in construction disputes now;
• key data management and data protection issues arising;
• the benefits in having a “data strategy”;
• how parties in a dispute can make best use of data arising from technology;
• what this means for future skills required in the construction industry. 

Podcast number 7 in the CMS ICE Disputes Building Voices podcast series is a discussion with Simon Hale following his successful action in resisting an injunction in the Commercial Court to restrain a USD 32.2m bond call pending ICC Emergency Arbitration Proceedings. Topics of discussion include:

• A review of the parties’ positions including whether the question of whether it is appropriate to grant injunctive relief is ultimately one for the emergency arbitrator;
• Why the Court decided in Yumn’s favour; and
• Interim relief under section 44 of the Arbitration Act.

To read more about the decision please see the following updates:

• Simon’s update here: Simon Hale succeeds in the Commercial Court on USD 32.2M Performance Bond Call - 4 Pump Court
• CMS’ LawNow post here: Challenging bond calls on international projects: English courts vs Emergency Arbitrators (cms-lawnow.com)

Podcast number 6 in the CMS ICE Disputes Building Voices podcast series is a discussion between Marcus Taverner QC and Rebecca Taverner about advocacy.  

Marcus Taverner QC, a barrister at Keating Chambers, shares his views on what makes a good advocate, including:

• Good and bad advocacy; 
• Different approaches to advocacy; and
• Common characteristics of good advocates.

Podcast number 5 in the CMS ICE Disputes Building Voices podcast series focuses on the early identification and management of disputes and, specifically, the use of mediation as an alternative form of dispute resolution. Shona Frame, a Partner in the ICE Disputes team, and Jane Fender-Allison, a Senior Associate in the ICE Disputes team, discuss the importance of mediation and what it can offer to parties involved in a dispute, including:

• What is mediation and recent developments;
• Why should the construction industry be interested in mediation; and
• How parties to a dispute can use mediation most effectively.

Podcast number 4 in the CMS ICE Disputes Building Voices podcast series is a whistle-stop tour of disputes avoidance issues in the construction and infrastructure sectors. Sarah Grenfell, a Partner in the ICE Disputes team, brings her many years of experience to consider key topics of discussion including:

• The importance of keeping records;
• Factors that are most likely to cause conflict on projects; and
• Early case evaluation/management.

The podcast follows on from a seminar on the same topic, presented by Sarah and HKA earlier this year. For more information on the seminar please following this link: Disputes avoidance in the construction and infrastructure sectors – anticipating, preparing, protecting | HKA