9 March 2010 22:49

Silver Shemmings LLP News Archive

Article by Matthew Dillon, Silver Shemmings' Consultant, published in FM World Magazine

On 10 December 2009, FM World (the official magazine of the British Institute of Facilties Management) published an article written by Silver Shemmings ' Consultant Matthew Dillon, on the issues that FM Contractors should be alert to when they negotiate the terms of their long term contracts.

To view an online version of this article please see the following link at page 17:
Article Link

December 2009

Change in the Technology & Construction Court

There has been a change in Judges at the Technology and Construction Court ("TCC") in London. Antony Edwards-Stuart QC has been appointed as a High Court Judge sitting in the TCC as from this October. This brings the number of High Court Judges to four in the TCC which obviously reflects the increase of workload in that Court.

However whilst the High Court side of the cases have increased, the work carried out by the Senior Circuit Judges has decreased and it has been decided that they only need two full-time Senior Circuit Judges and therefore Judge Thornton is moving to the Queen's Bench Division.

November 2009

“On-line Claims“ - Technology & Construction Court

We are pleased to advise that Silver Shemmings is one of the firms who have been invited to participate in the pilot project being run by the Technology and Construction Court, London for electronic filing of claims and paperwork.

The TCC is pioneering with the Commercial Court a system that allows claims to be issued
"on-line" which means a reduction in the amount of time taken to issue a claim form. In fact claims can be issued 24 hours a day with this system. The system allows judges to monitor and actively manage claims which is one of the CPR requirements. If the system is successful and all indications are that it is, then it will be in use for these 2 courts (London only) next year.

November 2009

PFI Contracts Article by Matthew Dillon published in Public Finance Magazine

On 2 October 2009 Public Finance Magazine published a feature written by Silver Shemmings' Consultant Matthew Dillon, on the risks that the public sector is exposed to once their pfi contracts go operational. With many years experience of both negotiating pfi contracts and of acting for clients when operational contracts go wrong, Matthew's article looks at some of the common problems and what needs to be done to address these. In spring 2010 Matthew will be speaking at a number of public lectures on the issues facing the public sector in their PFI Operational Contracts.

To view Matthew's article online visit:
Publicfinance.co.uk Site

October 2009

Silver Shemmings welcomes new Consultants on board

We are delighted to welcome four new Consultants to the practice. Rudi Heinrich and Rachael Williams are now based in our Cardiff office. Rudi specialises in Commercial Law, Insolvency and Commercial Litigation whilst Rachael is a specialist in high value Family Law Litigation.

Matthew Dillon and Anthony Philpott have joined the London office. Matthew Dillon who was previously an in-house Solicitor for one of the larger firms of contractors, specialises in Construction and Contractual Law. Anthony who also worked for a large firm of contractors as Legal Counsel for 11 years, specialises in Construction Contracts & Disputes, Commercial Property and Employment Law.

August 2009

Congratulations to Robert Shawyer, Partner based at our Cardiff Office.

Robert has recently been voted in as Chairman of the Chartered Institute of Arbitrators for Wales and has also been awarded his diploma in International Joint Venture Law by the International Bar Association.

April 2009

Health & Safety (Offences) Act 2008

The Health & Safety (Offences) Act 2008 came into force on 16 January 2009. The purpose of the Act is to provide...

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February 2009

Enforcement of an Adjudicator’s Decision: YCMS Limited -v- Grabiner & another 31 January 2009

Amendments of a Decision by the Adjudicator under the “slip rule” and off-setting the Award...

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February 2009

Getting Paid

Getting paid can be a challenge in the Construction Industry. This article gives a few of the practical considerations to bear in mind for Contractors in obtaining payment.

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April 2008

Commercial Buildings – Energy Performance Certificates

As from 6 April 2008 the requirement for an Energy Performance Certificate (EPC) is extended to commercial buildings over 500sq metres in size. Buildings under 500sq metres will be required to produce an EPC after 1 October 2008.

An EPC is required wherever a commercial building is sold or rented out. The certificate will be valid for ten years.

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March 2008

All Change on 6th April

All Change on 6 April 2008

Not only is 6 April 2008 the start of a new tax year, but it is also the date upon which many new regulations commence. The Government uses two dates each year – 6 April & 1 October – as common commencement dates for regulations.

So what’s in store this year?

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March 2008

Escrow Accounts – Are They Worth it?

A major consideration as far as a contractor is concerned is getting paid. With the economic downturn, receiving payment for works carried out becomes even more critical. One way of achieving security is to agree with the employer that funds should be paid into an Escrow account. An escrow account is a separate account, usually in the names of the employer and the contractor but held by an independent bank who will not release the monies in that account until certain criteria are met e.g. The presentation of interim valuation certificates issued and signed by the contract administrator/architect.

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February 2008

TUPE and the Insolvent Business

On 6 April 2006, the revised Transfer of Undertaking (Protection of Employment) Regulations came into force. These Regulations provide employment rights to employees when their employer changes as a result of a transfer of an undertaking. They implement the European Community Acquired Rights Directive (77/187/EEC, as amended by Directive 98/50 EC and consolidation in 2001/23/EC).

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January 2008

The Construction Act Consultation - Proposed changes to the adjudication procedure

In the 2nd Consultation paper there is the suggestion that the requirement that the adjudication provisions which currently only apply to construction contracts which are in writing should be removed.

All those in the construction industry know that construction contracts are more often than not only signed once the project has been finished or may not ever be signed, and in many instances are varied by way of oral agreement.

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September 2007

Waste Management for construction sites - New Proposals

A consultation period on construction site waste management has just closed and a summary of responses is expected shortly with new regulations coming into force in April 2008.

It is a fact that a considerable amount of waste is generated on all construction projects. This waste ends up in landfill. It is estimated that 90million tons of waste is generated in construction and demolition projects each year. Of that, 34% comes from packaging and materials delivered to site. There is considerable potential for financial savings if much of this waste were either recycled or steps taken to minimise waste.

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Sarah Shemmings

August 2007

Changes to the “Construction Act“ The Second Consultation

In June of this year the then Department of Trade & Industry introduced the second consultation period for changes to the Housing Grants Construction & Regeneration Act 1996 (“the Construction Act”). In the forward to the consultation document Margaret Hodge stated that the second consultation period on a “full package of measures” would “improve transparency and clarity in the exchange of information relating to payments thereby enabling parties to construction contracts to manage cash flow better; and to encourage parties to resolve disputes by adjudication”.

The consultation document which runs to some 92 pages appears to look at the problems encountered by the construction industry in seeking to follow the requirements of the Act and, which requirements have led to a considerable number of challenges in the courts relating to the interpretation and operation of the Construction Act.

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August 2007

An architect’s responsibility for latent defects

The Court of Appeal in February 2007 gave judgment in the case of Pearson Education Ltd v. Charter Partnership Ltd. The Court of Appeal held that the Architects were liable in negligence to the claimants who were the current lessees of a building for flood damage arising out of a negligently designed rainwater drainage system.

In this case the Defendants had designed a warehouse with a rain water drainage system that could not cope and as a result the claimant’s suffered a flood which damaged their stored goods causing a considerable financial loss. What they did not know was that the building had suffered a similar flood some years earlier.

The Architects argued that the claimants were outside the range of any duty of care it owed and there was no chain of causation linking the Architects to the Claimants.

The Court of Appeal held that the design defect was a latent defect and it was reasonably foreseeable that an inadequate drainage system would cause damage. The Court further found that there had been no evidence given to the Claimant of the previous flood and there was no reason why the Claimant should have carried out a survey into the adequacy or otherwise of the drainage system. In fact there was nothing to alert the Claimant that there was this potential problem. This claim was also within the relevant limitation period and therefore the Claimant succeeded against the Defendant.

July 2007

“Delay? What delay?”

A case earlier in the year in the TCC Court looked at a claim for damages for delay to a project. One issue was whether delay to one part of the construction programme was on the critical path and whether delays due to associated remedial works had delayed completion. Whilst the court held that the professional engineer had been negligent in the way it had carried out its duties, this negligence had no effect on the losses claimed and therefore no damages were payable.

The Judge made the some interesting comments about programming –

1. The critical path can be defined as “the sequence of activities through a project network from start to finish, the sum of whose durations determine the overall project duration
   
2. Duration is only the shortest time if activities on the critical path are carried out in the shortest time
   
3. There may be more than 1 critical path
   
4. It is important to look at activities at or near the critical path to understand their potential impact on the project
   
5. Windows analysis, reviewing the course of a project month by month, provides an excellent form of analysis to inform those controlling the project what action they need to take to prevent delay to the project
   
6. Float in a programming sense means the length of time between when an activity is due to start and when it must start if it is to avoid being on the critical path. Float can also be used to refer to the additional time needed/allowed to complete an activity over and above the shortest time that is reasonably required
   
7. It is of course, obvious that the analysis is only valid if it is comprehensive and takes account of all activities
   
8. If a retrospective delay analysis is being conducted .., the analysis must include the time to the end of the project otherwise activities may occur which will take them on to the critical path after the date of the final window or watershed.

This case shows the need to back up any delay analysis by factual evidence especially on a large project where several issues may be linked to delay but may not necessarily be the true cause of the delay for which damages are sought.

July 2007

“Who’s driving the company car?”

Company cars and speeding tickets can be a problem. If a ticket is issued for speeding it is sent to the registered owner who is responsible for providing details of the driver at the time the offence took place. If you don’t know who was driving then a request to the Central Ticket office of the relevant police force may give you a copy of the photograph taken at the time.

However, if the car was a company car and no-one owns up to driving it at the relevant time then there could be a problem. If no driver can be identified then the Company Secretary or a director is likely to be on the receiving end of a prosecution for failure to provide the driver’s details. If the Company can show that it has made every effort to identify the driver but without success, then the company may receive a warning and a request to institute a driver log out system so that all who drive the company car (ie it is used as a “pool” car) have to register the dates they were driving that car etc. Be warned though, if this happens again and the driver doesn’t own up then the Company and its directors will be prosecuted!

July 2007

Pre-action protocols - All change

Pre-action protocols were developed over a number of years in respect of a number of common types of claims, such as personal injury, professional negligence and construction.

The aim of the protocol is to reduce the number of claims going to litigation. Now, if one wants to make a claim, the protocol has to be followed before a claim can be issued in Court. Protocols do work and have significantly reduced the number of claims going to Court.

However, there are some problems with the protocols especially those relating to construction or professional negligence claims. The aim of the protocol is to exchange information to allow each side to examine the claims and defences being made and to try and reach an agreement. However in large claims this can be a lengthy and costly process, with each party bearing their own costs and should the process fail, those costs are not recoverable in the subsequent action.

There are currently 9 pre-action protocols each being slightly different in its requirements. At the current time there is a consultation process taking place to look at whether these can be streamlined into one general protocol with specific subject appendices or whether the system should stay the same. At the same time the consultation is looking at whether any other changes should be made, especially with regard to costs.

Responses to the consultation paper have now been submitted and are now being considered – watch this space!

June 2007

Adjudication - Another Protocol

The Adjudication Society has last year produced a protocol for Adjudicators in respect of how they should act when appointed.

Adjudication in construction claims is a well used process. However there have been grumbles about inconsistencies in the way some adjudicators act. This protocol does not introduce any new points but merely draws together a list of common sense points which if followed, will reduce criticisms of the way adjudicators act. The adjudication time table is tight and adjudicators have only a small amount of time in which to understand and give a decision on issues which can be very complex and time consuming.

The draft protocol states (in brief) that an adjudicator has an obligation to act expeditiously fairly and impartially between the parties at all stages and should ensure that each party has a reasonable opportunity to put its case. Any conflicts of interest must be disclosed and the adjudicator must treat the parties with courtesy. Further an adjudicator must propose a feel basis and seek agreement form the parties and expenses must be properly justified.

June 2007

 

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