Chapter 1 Construction Contracts
Background
The Classification of Contracts
The Standard Forms
The JCT 2005/2011 Suite of Contracts
Family of Contracts
JCT Named Specialist
Contractor’s Design Responsibilities
Contractual Structures
Contractual Procedure
Terms of the Contract
The Express Terms of Contract
Housing Grants, Construction and Regeneration Act 1996
Implied Terms of Contract
Payment under Lump Sum Contracts
Delay, Prolongation and Disruption
Quantification of Loss and/or Expense
The Private Finance Initiative
Partnering
Privity of Construction Contracts
International Contracts
Quantum Meruit
Chapter 1 Precedents
Precedent—Letter of Intent from Employer to Contractor
Precedent—Third Party Rights Exclusion Clause
Precedent—Entire Remedies Clause
Precedent—Entire Agreement Clause
Precedent—Form of Definalisation Declaration
Precedent—Sticker A
Precedent—Sticker B
Precedent—Discount Undertaking
Precedent—Equivalent Rights Clause in Warranty
Precedent—Choice of Law Clause
Precedent—Re-enactment Clause
Precedent—Notice Clause
Precedent—Attestation Clause for a Deed: Individual
Precedent—Attestation Clause for a Deed: Limited Company
Chapter 2 Notices and Preliminary Considerations
Introduction
Claims by Employer/Building Owner
Claim by Contractor for Time and/or Money
Claim by Sub-contractor
Claims by Architects for Payment
Retrospective Delay Analysis
Chapter 2 Precedents
Precedent - Notice to Contractor to Inspect Defects
Precedent - Letter Demanding Explanation for Fraud
Precedent - Notice by Employer’s Solicitor or Agent to Contractor of Acceptance of Repudiation
Precedent - Contractor’s Letter to Architect Demanding Proper Certification of Time
Chapter 3 Self-Help
Background
Set-off
Ejecting a Contractor or Protester from Site
Working Alongside the Contractor
Repudiation
Frustration
Leaving Site and Suspending Work
Removing Materials
Seizing Materials
Preservation of Handover Documents
Chapter 4 Alternative Dispute Resolution
General Principles
Consequences of Failing to Attempt ADR
When Will the Courts Apply Sanctions?
ADR Processes
Providing for ADR
Choosing a Neutral
The ADR Agreement
Conduct of the ADR Process
The TeCSA ADR Protocol
Conciliation under the CCG Procedure?
Chapter 4 Precedents
Precedent—TeCSA Model Mediation Agreement
Precedent—TeCSA Mediation Rules
Precedent—Draft ADR Order
Precedent—CEDR Model ADR Clauses
Precedent—CEDR Model Mediation Procedure and Agreement—2018 Edition
Precedent—Hybrid ADR Agreement
Precedent—Construction Conciliation Group Precedent—Invitation to Refer a Dispute to CCG
Conciliation
Precedent—Construction Conciliation Group Enquiry as to the Availability of a Conciliator
Precedent—CCG—Charging and Fixed Period Bands
Precedent—Construction Conciliation Group Appointment of a Conciliator by the Parties
Precedent—CCG Conciliator’s Agreement
Precedent—Construction Conciliation Group Code of Conduct
Precedent—Construction Conciliation Group Conciliation Procedure
Precedent—TCC Draft Settlement Order
Chapter 5 Adjudication
Introduction
Judicial Control of Adjudication
The Categorisation of Third Party Decision-Making Processes
The Right to Adjudication
The Role of the Adjudicator
The Scope of an Adjudicator’s Jurisdiction
The Identity of the Adjudicator
The Appointment of the Adjudicator
The Format of Proceedings
Enforcement of Adjudicator’s Decisions
Routes for Enforcement
Grounds for Resisting Enforcement
Adjudication Applications in the TCC
Adjudication under the Scheme for Construction Contracts
Adjudication under JCT Contracts
Adjudication under CIC Model Adjudication Procedure
Adjudication under ICE Contracts
Adjudication under the Engineering and Construction Contract (Formerly Known as the New
Engineering Contract)
Adjudication under the TeCSA Adjudication Rules
Expert Determination
Chapter 5 Precedents
Precedent—Notice of Intention to Refer Dispute as to Payment
Precedent—Notice of Intention to Refer Dispute as to Set-Off
Precedent-RICS Request for the Appointment of a Construction Adjudicator
Precedent—CIC Form of Adjudicator’s Agreement
Precedent—ICE Form of Notice of Intention to Refer a Dispute to Adjudication
Precedent—Application for the Nomination/Appointment of an Adjudicator by ICE
Nomination/Appointment of an Adjudicator by ICE
ICE Form of Adjudicator’s Agreement
Precedent—Other Party’s Statement of Case—Denial of Contract
Precedent—Claimant’s Reference to Alleged Settlement
Precedent—Adjudicator’s Rejection of Demand for Resignation
Precedent—Adjudicator’s Decision
Precedent—The Disputes Clause in Thames Valley Power v Total Gas and Power
Chapter 6 Statements of Case
Principles
Causes of Action
Interest
Value Added Tax
The Claim Form
Particulars of Claim
Defences
Counterclaims
Reply and other Subsequent Pleadings
Scott Schedules
Limitation
Quantum of Damages
Further Information
Amendment
Proceedings Against Third Parties
Chapter 6 Precedents
Precedent—Concise statement of nature of claim—Certified Sum
Precedent—Concise statement of nature of claim—Balance of Contract Sum
Precedent—Concise statement of nature of claim—Quantum Meruit
Precedent—Concise statement of nature of claim—Loss and Expense Claim
Precedent—Concise statement of nature of claim—Defects Claim
Precedent—Concise statement of nature of claim—Adjudicator’s Decision
Precedent—Concise statement of nature of claim—Multi Defendant Defects Claim
Precedent—Scott Schedule in Action for Defective Work
Precedent—Scott Schedule in Action for Defective Work where Parties use Word Processors
Precedent—Scott Schedule in Action Claiming Extras and Omissions to Fixed Price Contract
Precedent—Specimen Column Headings for Scott Schedule for Work Done and Materials Supplied
Precedent—Specimen Column Headings for Scott Schedule for Work Done and Materials
Supplied: Alternative Form
Precedent—Specimen Column Headings for Scott Schedule for Work Done and Materials
Supplied: Alternative Form
Precedent—Specimen Column Headings for Scott Schedule for Goods Sold and Delivered
Precedent—Specimen Column Headings for Scott Schedule Agent’s Commission
Precedent—Denial of Construction Contract
Precedent—Statement of Truth of Defence
Precedent—Request for Further Information—Letter Form
Precedent—Request for Further Information—Separate Document
Precedent—Objection to Request for Further Information
Precedent—Letter Objecting to time for response in Request for Further Information
Precedent—Identification of Means by Which Amendment Pre Service is Made
Precedent—Identification of Means by Which Amendment With Consent is Made
Precedent—Identification of Means by Which Amendment With Leave of Court is Made
Chapter 7 Pre-action Protocols
Introduction
The Construction and Engineering Pre-action Protocol
Pre-action Protocol for Construction and Engineering Disputes, 2nd Edition
The Letters
The Pre-action Meeting
Protocol Referee Procedure
The Construction and Engineering Pre-action Protocol—Protocol Referee Procedure
Pre-action Protocol for Construction and Engineering Disputes, 2nd Edition
Issuing Claims Just Before the Limitation Period Expires
Application of the Protocol to Other Processes
Chapter 8 The Management of Proceedings and Legal Representation
Principles of Management
Solicitors
Barristers
Professional client access
Public access
Licensed access
Chapter 9 Litigation
Coronavirus update
Guidance from the Technology and Construction Court
COVID-19: Overview of HMCTS response: July 2020
The Civil Procedure Rules (“CPR”)
Forms
The Electronic Working Scheme
Issue
Service
Acknowledgment of Service
Statements of Case
Amendment
Further Information
Addition and Substitution of Parties
Part 20—Counterclaims and Other Additional Claims
Applications for Orders
Summary Judgment, Interim Payment and Striking Out of Defences
Injunctive Relief
Case Management
Disclosure and Inspection of Documents
Evidence
Offers to Settle
Discontinuance
Trials
Court Fees
Costs against Non-parties
Appeals from the TCC to the Court of Appeal
Enforcement
Chapter 9 Precedents
Precedent—Claim form N1
Precedent—TCC Claim Form
Precedent—Response Pack/Acknowledgment of Service
Precedent—Title of Proceedings—Two Parties
Precedent—Title of Proceedings—Multiple Claimants/Defendants
Precedent—Title of Proceedings—Part 20 Parties
Precedent—Statement of Truth—Statement of Case, a Response, Application Notice or a Notice of
Objections
Precedent—Statement of Truth—Witness Statement
Precedent—Statement of Truth—Separate Document
Precedent—Authority for Solicitor to Sign Statement of Truth
Precedent—Part 36 Offer by a Claimant
Precedent—Application Notice—TCC Cases
Precedent—First case management questionnaire (the prescribed form)
Precedent—First case management questionnaire—Simple example
Precedent—Case management Conference Directions Form
Ungley Order
Precedent—Wording Snippet for Defendant’s Skeleton for Case Conference
Draft Directions In Adjudication Enforcement Proceedings
Precedent—Application Notice—Practice Form N244
Precedent—Application Notice in TCC Case where No Hearing is Sought
Precedent—Pre-trial Review Questionnaire (the prescribed form)
Precedent—Pre-trial Review Directions Form (the prescribed form)
Precedent—Costs Form 1—Statement of Costs (summary assessment)
Precedent—List of Documents: Standard Disclosure— Prescribed Form N265
Precedent—Appellant’s Notice
Respondent’s Notice
Precedent—Application Notice in Court of Appeal
Precedent—Application Notice for Permission to Appeal
Precedent—Request for Dismissal of an Appeal
Precedent—General Form of Request for Dismissal of an Application
Precedent—Request for a Dismissal of an Application which has not been Served on Any Other
Party
Precedent—General Form of Judgment or Order
Precedent—Witness Statement
Precedent—Claim Form (CPR Part 8)
Precedent—Application Notice
Precedent—Electronic documents questionnaire
Chapter 10 Expert Evidence
The Purpose of Expert Evidence
The Independence of Expert Witnesses
The Expertise and Case Knowledge of Expert Witnesses
Expert Disciplines
Expert Evidence upon Payment for the Works
Expert Evidence as to Delay
Expert Evidence as to Defects
Expert Evidence—Other Cases
Choosing an Expert Witness
Expert Evidence under the CPR—Getting Permission
The Civil Justice Council Experts Protocol—Guidance for the Instruction of Experts in Civil Claims
2014
Witnesses of Fact as Experts
The Payment of Party-appointed Experts
The Liability of Experts
Assessors
Chapter 10 Precedents
The Instruction Letters
Precedent - Pre-advice enquiry
Precedent - Instructions to advice
Precedent - Pre-report evidence enquiry
Precedent - Instructions to prepare and give expert evidence
Application for a Direction as to Expert Evidence
Application in a County Court for a Direction as to Expert Evidence
Order for Expert Evidence
Order for Appointment of a Court Expert
Application to a County Court for Reference for Enquiry and Report by District Judge
Precedent—Expert Report Skeleton
Chapter 11 Arbitration
Introduction
The Making of an Effective Arbitration Agreement
Arbitration Agreement or Expert Determination?
The Jurisdiction of the Arbitrator
The Legal Principles to be Applied
Stay of Court Proceedings
Anti-suit Injunctions
The Arbitration Notice (Notice to Concur)
Choosing an Arbitrator
Appointment of the Arbitrator
Entitlement of the Arbitrator to Fees
Interlocutory Matters
Provisional Orders and Interim Awards
Costs in Arbitrations
The Arbitration of Multi-partite Disputes
Trial
Appeals and other Challenges
The Position of the Arbitrator: Revocation, Resignation, Death and Immunity
Enforcement
CIMAR
The ICE Arbitration Procedure
The ICC Court of Arbitration
The Role of the Courts in ICC Arbitrations
Enforcement of ICC Awards
The Text of the Arbitration Act 1996
Chapter 11 Precedents
Precedent—Clause for Pendulum Arbitration Agreement
Precedent—ICC Arbitration Clause
Precedent—Proviso to Arbitration Clause for Adjudication
Precedent—The Joinder Clause in City & General v AYH
Precedent—Headings
Precedent—Dispute Generation Letter
Precedent—Notice to Concur: Short Form
Precedent—Default Arbitration Notice Number 1 (named or designated arbitrator)
Precedent—Joint Letter Proposing Alternative Commitment Fee (Pre-Acceptance)
Precedent—Joint Letter Refusing Commitment Fee (Post-Acceptance)
Precedent—Claimant’s Proposals for Procedure
Precedent—Respondent’s Refusal to Pay Share of ICC Advance of Costs
Precedent—The Turner Arbitration Chambers Typical Form of Agreement for Appointment of a
Costs Security Arbitrator
Precedent—The Turner Arbitration Chambers Costs Security Arbitration Scheme Rules
Precedent—Heading for a Calderbank Letter in Arbitration
Precedent—Invitation to Arbitrator to make a Peremptory Order
Chapter 12 Disclosure, E-disclosure and Technology
Types of Information
Disclosure and Inspection of Documents
Key Changes Introduced by the CPR
Standard Disclosure
Documents in a Party’s Control
Dispensing With and Limiting Disclosure
Search for Documents
E-disclosure
Form of List of Documents
Pre-action Disclosure
Non-party Disclosure
Specific Disclosure
Continuing Duty of Disclosure
Inspection and Copying
Inadvertent Disclosure and Inspection
Is Adjudication “Litigation” for the Purposes of Claiming Litigation Privilege?
Use of Disclosed Documents
Sanctions for Non-disclosure
Privilege—Reports upon Defects and Third-party Correspondence
Practice Direction 51U—Disclosure Pilot for the Business and Property Courts
Definition of Document
When do Disclosure Obligations Start?
The Duty on Legal Representatives: Preservation of Documents
Initial Disclosure
Extended Disclosure
The Extended Disclosure Models
Identifying the Issues for Disclosure
Other Provisions concerning Disclosure Models
The Disclosure Review Document
Disclosure Guidance Hearings
Complying with an Order for Extended Disclosure
Production of Documents
The Right to Withhold Production of Documents
Confidentiality
Redaction
Sanctions and the Failure Adequately to Comply with an Order for Extended Disclosure
Specific Disclosure
Documents Referred to in Evidence
Chapter 12 Precedents
The TeCSA Protocol
eDisclosure Protocol Pack
The Electronic Working Scheme
Chapter 13 Guarantees, Bonds, Warranties and Assignments
Principles of the Law of Surety
Interpretation of Bonds
Conditional (Traditional) Bonds
Demand Bonds
Mareva Injunction
Retention of Title and Charges
Retention Money
Promissory Notes, Letters of Credit and Post-dated Cheques
Collateral Warranties
Specific Performance: Collateral Warranties and Bonds
Assignments
Chapter 13 Precedents
Witness Statement in Support of Application for Setting Aside Retention Money
Draft Minute of Order for Setting Aside Retention Money
Wording to be Added to JCT 2011, Clause 4 if Deleting the Obligation to Separate Retention Money
Chapter 14 Settlement
Introduction
Achieving the Climate for Settlement
The Ingredients of a Binding Settlement
Settlements Obtained by Economic Duress
Terms of Settlement—Interim Settlements
Terms of Settlement—Final Settlements
Procedure
Complications in Multipartite Disputes
Confidentiality of Settlement Agreements
Chapter 14 Precedents
Precedent—Without Prejudice Funding Agreement
Precedent—Acceleration Agreement
Precedent—Order Staying Proceedings for Adjudication
Precedent—Final Settlement: “All In” Deal
Precedent—Final Settlement, Alternative Form: Agreement as to Certification Entitlement
Precedent—Tomlin Order
Precedent—Terms of Settlement between Claimant and Defendant where no Third Party
Settlement
Precedent—Notice of Discontinuance
Precedent—Letter Sending Cheque in Full and Final Satisfaction
Precedent—Letter by Recipient of Settlement Cheque Denying Accord and Satisfaction
Precedent—Wording to Catch Extra-Contractual Claims
Precedent—Wording to Resolve Doubt about Past Costs Orders
Precedent—Wording to Resolve Doubt about Inter Firm Photocopying Charges
Precedent—Tomlin Order Wording
Chapter 15 Construction Insurance
Relevance of Insurance
Insurance Protects Both Parties to a Construction Contract
Cost of Insurance
Types of Insurance on Construction Projects
Scope of Cover
Liability and Loss Insurance Distinguished
Joint Names Insurance Preferable Versus Noting an Interest on the Policy
Insurer Recovering in the Name of the Insured (Subrogation)
“Events Occurring” and “Claims Made” Cover Distinguished
Aggregate and “Each and Every Event” Insurance Affects the Amount Recoverable under a Policy
Deductibles and Excesses are Borne by the Insured Party
Dealing with Insurers
Negotiating Insurance Provisions in Construction Documents
Directory
Directory
Part I Organisations
Part II—Legally Qualified Adjudicators
Part II—Adjudicators