Publications

Has a contract been formed?
April 2010

Christopher Cullen

The RTS Flexible Systems case (Supreme Court, March 2010) illustrates the problems that can occur if the terms of a contract have not been agreed before work starts. Christopher Cullen reports on this case.

Third Parties (Rights Against Insurers) Act 2010
March 2010

Ian Masser

On 25 March 2010, the Third Parties (Rights Against Insurers) Act 2010 ("the Act") received Royal Assent and became law in England and Wales.

The Act continues to permit the transfer (from an insured to a potential third party creditor) of rights arising under a contract of insurance where that insured is insolvent and cannot, as a result, meet or respond to a third party's claim for damages.

The primary function of the Act is to modernise the previous legislation, as set out in the Third Parties (Rights Against Insurers) Act 1930 ("the Previous Act").

The purpose of this note is to briefly identify and comment on the key provisions introduced by the Act as well as briefly considering the potential implications for insurers.

CML Certificates: But you said it was fine!
26 March 2010

Rachel Barnes
Publication: Building

Claims are coming in against consultants who have signed the Council of Mortgage Lenders’ standard form certificate. Rachel Barnes considers the dangers inherent in these certificates.

Amendments to the Construction Act: Update
March 2010

Nick Gillies

In December 2008 we summarised the Bill which proposed various amendments to the Construction Act. After some last minute ‘tweaks’ in the House of Commons, the Bill has now passed into legislation, receiving Royal Assent on 12 November 2009.

This note provides details of the last minute changes to the Bill before it was passed into legislation and a summary of the other key amendments.

The consequences of making a misrepresentation
February 2010

Rachel Barnes

The judgement in the EDS v BSkyB case handed down on 26 January is a useful reminder of the dire consequences that can result from a fraudulent misrepresentation made in order to promote a bid and that limitation of liability clauses will not apply to the damages payable as a result.

For a short résumé of the law on misrepresentations and the judgement in this case, see the attached note.

Legal Review of 2009
January 2010

Beale and Company

Our Legal Review of 2009 looks back on some significant cases involving professional firms. Commentators predicted a deluge of claims in 2009 arising from the financial and economic downturn. Whilst there were undoubtedly some cases in 2009 driven by the downturn, the predicted rise in claims did not come to pass.

Looking forward we see legal costs being a significant battleground in 2010. The use of litigation funding may well mean more claims but we predict a heightened use of cost protective offers and creative settlement initiatives to promote early settlement of disputes. The impact of Mr Justice Jackson's recently published review of litigation costs will, we believe, lead to a greater emphasis on resolving disputes pre-action and, where there is litigation, the Courts taking a greater role in controlling costs and better management of larger commercial litigation. It remains to be seen if and when the recommendations will be implemented.

The challenging times ahead will see increasing pressures and new areas of risk for all professions as the spotlight is turned on ‘the advisors'. Interest rate rises and a growth in repossessions, most probably following the election, will no doubt fuel such claims. It goes without saying that those with effective risk controls and risk management in place will fare best.

We hope you find our review of the last year useful.

Building Information Modelling
January 2010

John Henderson

The use of Building Information Modelling (BIM) in the US was the subject of a paper presented at a recent international conference in London. The author suggested that BIM is being widely adopted for complex projects but that its use is being held back by problems of a business or legal nature, particularly problems affecting designers.

In the attached article, we summarise some of the author's comments on the technology concerned and the problems referred to, and consider whether these problems are likely to be the same in the UK. We suggest that there are reasons to think that this is not the case.

The Jackson Review of Civil Litigation Costs
January 2010

Beale and Company

Lord Justice Jackson yesterday published his final report into costs in civil litigation. The report is detailed and substantial extending to over 550 pages and will no doubt be the subject of considerable debate in the legal profession in the coming weeks. We have prepared a paper in which we briefly analyse the impact of the main recommendations.

A warning to surveyors: remind your client of impending deadlines
January 2010

Paul Redfern and Kristina Vongas

This note provides a summary of the recent decision in the case of Littlewood v Radford and Boston where the Court of Appeal found that a firm of surveyors had a duty to remind a client of an important deadline, notwithstanding that they had previously notified the client of the deadline, and had advised that they would no longer continue to act if an outstanding invoice remained unpaid.

Evidence: In? Out? Can an adjudicator shake it all about?
January 2010

Mark De Freitas

The recent TCC case of Jacques v Ensign provides a useful summary of the Court's application of the concept of natural justice to adjudication proceedings.

Read on for further details.

Rights to consultant's documents
January 2010

Rachel Barnes

Consultants are more frequently being required in their appointments to deliver up their drawings and documents to the client - on suspension and/or on termination, for whatever cause.

Such clauses need to be considered carefully as they could give the client rights to documents which they would not have unless they brought a claim or to documents to which they would not normally be entitled because they are privileged.

Rachel Barnes considers the implications of such requirements in the paper Rights to consultant's documents.

The Bribery Bill and how it will impact construction companies
January 2010

Michael Archer and Becky Purse

The construction industry received a sharp reminder of how costly corrupt practices can be when 103 construction firms were fined a total of £129.5m by the OFT in September 2009 for “illegal anti-competitive bid rigging activities”. However, the publication of the Bribery Bill demonstrates that construction firms will need to be even more vigilant in ensuring that they conduct their businesses in accordance with the law. The Bill has sufficient teeth to tackle corruption committed by UK companies both at home and abroad. It also requires new disciplines predominantly for those dependent on winning public sector work to have internal procedures that prevent bribery occurring.

In light of the House of Lords second reading of the Bill on 9 December 2009 this article looks at how companies in the UK will be affected by the Bill, and the steps that can be taken to prepare for when it becomes law.

ACE agreements: Altogether now
4 December 2009

Rachel Barnes
Publication: Building

The recent streamlining of the two design agreements for consultants into one brings simplicity and flexibility as well as a new take on liability.

Once bitten, twice shy
10 November 2009

Nick Gillies
Publication: Solicitors Journal

Litigants in costs disputes can now force defendants to disclose further details about third-party funding, says Nick Gillies.

Further changes to Irish Minimum Terms for Solicitors Professional Indemnity Insurance
October 2009

Stephen Chessher

Last month Stephen Chessher wrote about changes to the Irish Minimum Terms to be introduced from renewal on 1 December 2009.

Following those changes, further discussions were held between the Law Society and Professional Indemnity Insurers with a view to making the market for Solicitors Professional Indemnity Insurance more attractive for existing and potential new entrants. The background to those discussions were the concerns by the Law Society that, notwithstanding the changes it had already agreed to the Minimum Terms, premium rates would simply be unaffordable for many firms without a further relaxation of the Minimum Terms. A further factor has been the continuing uncertainty surrounding the Solicitors Mutual Defence Fund and whether it will be in a position to offer insurance come next renewal.

The outcome of these deliberations has been further changes which have been incorporated in the Solicitors Acts 1954 to 2008 (Professional Indemnity Insurance) (Amendment) (Number 2) Regulations 2009.

This document outlines the major changes.