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Quarterly Email Bulletin – June 2006
Welcome to the Alway Associates news bulletin. This quarterly newsletter is intended to keep you up to date with matters relating to contracts and commercial issues within the construction industry.
- Continued emphasis on Mediation
With Multiplex and Cleveland Bridge UK being guided to mediation by the high court and with Judges at the Technology and Construction Court piloting a new mediation-style dispute resolution service there is clearly a continued emphasis on mediation as part of the alternative dispute resolution process.
Mediation is a process often encouraged by the courts. In Dunnett v Railtrack plc the Court of Appeal told the parties that they should attempt ADR; which Railtrack refused to consider. Notwithstanding that Railtrack won the appeal, they did not recover their costs from Ms Dunnett. The court stated that if lawyers ‘turn down out of hand the chance of ADR when suggested by the court, as happened on this occasion, they may have to face uncomfortable costs consequences’.
A number of subsequent cases have made it clear that there are situations where a winning party can refuse to mediate and still receive its costs, but this involves a significant risk. It can be seen that there is now support through the CPR and the courts for ADR and particularly for mediation. For an overview of the ADR techniques click here to link to an article by Kevin McKee.
- JCT Partnering Contract
JCT are in the process of finalising their new partnering contract for collaborative working. Watch this space for more information in the near future.
- Onward march of the NEC contract… to the Olympics!
The popularity of the NEC standard forms of contract continues to build with the confirmation that they will be used for the Olympics 2012 projects. However, we are noticing that in many cases the contracts are not being used in the way that they were originally designed with parties failing to take advantage of the principle involved in these new contracts.
It will be important for those involved in bidding for and delivering projects in the Olympics to fully understand the principles behind these contracts and the potential risks involved. For information on training available on these and other Standard Forms of contract click here.
Frequently Asked Questions
On the 1st March 2005 we started our free of charge helpline. As all of our existing clients will know to their benefit, we have always been willing to offer over the phone initial advice on any specific matter at no cost. Not surprisingly we have noticed that some subjects are asked about more often than others. To this end we have decided to include this section on our newsletter which will address some of the issues that have been raised.
- I’m employed as a Contract Administrator on a project and the Contractor is requesting an
extension of time, but also claims time is at large. What does this mean?
Time is said to be ‘at large’ when there is no specified date for the completion of the Works. In such circumstances the contractor’s common law obligation is to complete within a reasonable period of time and the employer forfeits any rights to liquidated damages having instead to recover unliquidated damages. Under standard forms where there are provisions for extensions of time, time can be rendered at large if the Contractor is delayed by the act or default of the employer and there is no contractual provision for the contract administrator to grant an appropriate extension of time.
- We are a Main Contractor working under a letter of intent. The letter of intent includes a limit on expenditure. We have reached that limit and the architect keeps issuing instructions for further works but won’t issue a letter increasing the cap. Is there any risk of us not getting paid if we go over the limit?
Yes, there is a substantial risk. You should not exceed the cap limit without authority being given by the employer.
- We have been awarded an extension of time under the JCT 98 Contract. The Employer’s Quantity Surveyor is paying us loss and expense for prolongation based upon the preliminary rates in our tender. Is this correct in view that our actual site resources are much higher?
No, it is not correct. You are entitled to be paid your actual loss based upon the actual costs of your resources deployed on site and not the rates included within your tender.
If you have a problem or question relating to a construction contract, be it legal or commercial, and want to speak to an expert in the field then call our free helpline on:
0845 838 2759
The helpline is open Monday to Friday from 9.30am to 4.30pm and gives you the opportunity to speak
Recent Articles
For more in depth information on topics related to the industry we regularly post new articles on our website. Article recently posted have included:
To read these and search for other articles click here.
Company News
On the 4th April Alway Associates opened our new Birmingham office. Michael Rowlinson will be the director in charge of this new office and we believe that it will further enhance the quality of support that we can offer to our clients in the greater Birmingham area. To contact this office call: Tel.: 0121 443 4490 or email Michael directly at michael.rowlinson@alway-associates.co.uk.
- Welcome to Rosemary Richards
On the 8th May Rosemary joined the team in our Cardiff office administrator. Rosemary will be responsible for assisting Robert Shawyer in managing our Cardiff office.
Steven will be joining the team in our Cardiff office as a senior consultant. Steven has an excellent track record within the construction industry and will bring another level of support to our clients with is experience in the contracting side of the industry. To contact Steven, once he starts, call our Cardiff office on 02920 464612 or email steven.evans@alway-associates.co.uk.
- Good luck to Clare Taylor
This year Clare will again be taking part in the Race for Life for Cancer research UK on the 18th June at Heythrop Park. We wish her the best for her run.
- Alway Associates Summer Social
This year Alway Associates are holding their summer social event on the 9th July at the Cotswold Wildlife Park. The event includes a barbeque, entrance to the park and various sports and games. Attendance will again be high with over 80 people coming along, both staff and clients with their families.
Forthcoming Events / Seminars
Alway Associates hold regular events around the country. The following are some of the next events coming up and links to book your place:
Free of charge breakfast seminars:
- What every contractor should know about Planning & Programming
Sheffield 14th June 2006 / Solihull 22nd June
A review of programming and planning including the requirements of the major standard forms of contract, the contents of a programme, uses of a programme and the major delay analysis techniques and tools.
- How to be successful in Adjudications
London 15th June
A review by Matthew Davies of practical issues relating to the commencement and conduct of adjudication proceedings for those acting as a Referring or Responding Party.
- Construction Act proposed changes
Cardiff 25th June / Bristol 29th June
The DTI and Welsh Assembly have drafted proposed changes to the Construction Act. Robert presents these proposals and discusses
how they have been received/may affect contracting parties.
- Extensions of Time - queries answered
Cardiff 25th June / Bristol 29th June
Robert Shawyer presents an analysis of extension of time events/compensation events, what they mean and the problems of the misunderstandings and urban myths surrounding them and Loss and Expenses.
Cardiff 22nd August / Bristol 24th August
Robert Shawyer presents a seminar on upstream and downstream common problems/pitfalls and how they might be dealt with. The presentation includes some contractual nightmare scenarios.
Other Events:
- SLV ConEx “Open Day” 14th June
This summer networking event was an excellent opportunity to meet key players in the area and to hear about opportunities in the Stort and Lee Valley area, including the Olympics, and the Stanstead Airport Expansion. Alway Associates were one of the main sponsors of this event.
If you haven’t seen a copy of our new seminar flyer or would like further details on the above events or what in house training we can offer please email us at enquiries@alway-associates.co.uk and we will send you our latest information.
Alway Associates:
Construction Law, Contracts & Commercial Consultants www.alway-associates.co.uk
BrunswickIS
Project & Commercial Management Services www.brunswickis.co.uk
We have no wish to disturb you unnecessarily. If you do not wish to receive email updates please reply to unsubscribe@alway-associates.co.uk
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