|
In the Courts
Costs – beware!
In Costain v Charles Haswell & Partners we saw a (sadly) common story – a claim by a contractor which, during the course of the litigation, reduced to less than half the size it was at the outset. This was coupled with the fact that the defendant, Haswell, did not make any payment into court or formal settlement offer. The costs of the litigation were huge. Ultimately, Costain were awarded only a fraction of what had been claimed. The usual order for costs is that they “follow the event” – that is, the winning party gets the costs order in its favour. But here, there was a question over who, truly, had won. The court took into account the amount of time taken up by both parties on the points on which they had been successful, allocated that between them as a percentage and then reduced the percentage of each party, based on the conduct of the proceedings (the apparently inflated original claim vs the failure to make any offer of settlement or payment in) and ordered the net difference to be paid by Haswell to Costain. The moral of the story is – don’t inflate the claim and don’t be slow in making sensible settlement offers. The costs penalty could be greater than you think.
Insolvency - check your contracts
In William Hare Ltd v Shepherd Construction Ltd, “insolvency” in a sub-contract was defined by reference to the Insolvency Act 1986. The Enterprise Act 2002 introduced a procedure allowing an insolvent company to go into administration using a self-certification process. The employer here had used that process but provisions in the contract allowing the withholding of payment on insolvency did not apply because the definition of insolvency in the contract did not extend to the self-certification process. A worthwhile lesson in checking your standard form (and bespoke) contracts regularly to make sure that you are not on the wrong side of legislative changes.
Injunctions
For the first time, the courts have allowed service of an injunction via Twitter. There was good reason to do this – the defendant was impersonating the plaintiff on Twitter; his identity was unknown and the purpose of the injunction was to stop the impersonation – so the court took the pragmatic approach of allowing service via the medium which it could be fairly sure the defendant would be using. It’s unlikely that this will become widespread in the near future, but it is another milestone in acceptance by the courts of the credentials of electronic media.
Legal News
Changes to the Construction Act...read more
Overview of JCT 2009 Contracts...read more
JCT Project Bank Accounts...read more
Industry News
Chief Construction Adviser...read more
'Never Waste a Good Crisis' report published...read more
| 
02920 48 22 88
