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Construction Contracts Law and Practice

by: Wilmot-Smith, Richard

Construction Contracts Law and Practice

by: Wilmot-Smith, Richard

ISBN 13:
9780199281244
ISBN 10:
0199281246
Format: Hardcover
Copyright: 05/18/2006
Publisher: Oxford University Press
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Summary

An up-to-date, practical and modern textbook on the law and practice relating to construction contracts in the UK dealing with the substantive law and modern dispute resolution procedures in the field of construction law. This text will be valuable to practitioners and professionals in the construction business.

Table of Cases

xxxi

Tables of Primary Legislation

lxxiii

Tables of Secondary Legislation

lxxxiii

I. THE CONTRACT

Contracts: Formation and Interpretation

Introduction

(4)

Invitations to Tender or Treat

(11)

Subject to Contract

(2)

Letters of Intent

(3)

Offer and Acceptance

(27)

Consideration

(17)

Economic Duress

(2)

Intention to Create Legal Relations

(8)

What Happens When Work Is Done and There Is No Contract

(3)

The Interpretation of Contracts: Rules as to How They Are Interpreted and What Background It Is Permissible To Look at in Interpreting a Contract

(10)

Literalism and Reasonableness

(3)

Context and `Factual Matrix': What is Admissible and What is Inadmissible Evidence of Context

(6)

Individual Rules of Construction and Interpretation

(11)

Implied Terms and Impermissible Terms

(19)

A Course of Dealing

101

(1)

Terms Implied by Statute

102

(1)

Supply of Goods and Services Act 1982

103

(6)

Housing Grants, Construction and Regeneration Act 1996: Part II

109

(9)

Terms Implied at Common Law

118

(22)

Criteria for the Implication of a Term into a Contract: The Basic Criterion

119

(5)

Criteria for the Implication of a Term into a Contract: Traditional Terms Examined

124

(16)

Impermissible Terms

140

(6)

Penalties and Exemption Clauses

140

(1)

`Pay When Paid' Clauses

141

(2)

Entire Agreement Clause

143

(3)

Rectification

146

(5)

Estoppel and Waiver

151

Standard Forms of Contract and Bespoke Contracts

Introduction

(6)

The Elements of the `Traditional Contract'

(62)

The Basic Warranties

(4)

Sub-letting and Assignment

(3)

Prescription of the Standard of Work and Quality and Specification of Materials

(2)

Setting Out

(1)

Obedience to Instructions

(2)

Compliance with Statute

(4)

Men on Site

(4)

Sufficiency of Tender

(2)

Measurement: The Standard Method of Measurement: Contract Sum Adjustment

(3)

The Right to Vary or Change the Works

(9)

Insurance

(7)

Possession and Time (and Extensions of Time) for Completion

(3)

Certificates of Completion and Making Good Defects

(2)

Programmes and Method Statements

(1)

Loss and Expense

(1)

Determination or Forfeiture

(5)

Fossils

(1)

War

(5)

Fluctuations or Increased Costs

(2)

Nominated Sub-contractors and Nominated Suppliers

(8)

Payment and Certificates

(6)

Arbitration, Adjudication, Expert Determination, and Litigation: Dispute Resolution

(6)

Notices

(2)

Prime Cost Contracts

(2)

Design and Build Main Contracts

(4)

Management Contracts

(3)

Forms of Sub-contract

100

The Provision or the Principal Obligation of the Sub-contractor

101

(1)

Back to Back and Indemnity

102

(4)

Insurance

106

(4)

Variations

110

(1)

Right of Access to the Site of the Contract Professional

111

(1)

Progress and Completion: Extensions of Time and Damages for Delay

112

(3)

Loss and Expense

115

(2)

Defects

117

(1)

Set Off and `Pay When Paid'

118

(8)

Sub-letting and Assignment

126

(1)

Forfeiture or Determination

127

(3)

Fluctuations

130

(1)

Payment and Direct Payment

131

(4)

Notices

135

(1)

Arbitration, Adjudication, Expert Determination, and Litigation: Dispute Resolution

136

Quantum Meruit

The Meaning of Quantum Meruit

(2)

When There Has Been an Agreement to Pay a Reasonable Price

(3)

Where There Has Been No Agreement

(8)

When There Is an Agreement But the Work Falls Outside Its Scope

(10)

Where There Has Been a Void or Repudiated Contract

Assignment and Sub-letting and the Contracts (Rights Against Third Parties) Act 1999

Assignment and What Cannot Be Assigned

(9)

Where Assignment Is Prohibited

(1)

Contracts of a Truly Personal Nature

(1)

Assignment Savouring of Maintenance and Champerty

(3)

Statutory and Equitable Assignment

(5)

Statutory Assignment

(3)

Equitable Assignment

(2)

Assignment Subject to Equities

(2)

Assignment When There Is Insolvency

(1)

Assignment by the Contractor

(3)

Assignment by the Employer

(9)

Sub-letting

(2)

Contracts (Rights Against Third Parties) Act 1999

II. LIABILITY

The Roles of Professionals

Background and Professionals Generally

(12)

The Architect

(6)

The Project Manager

(7)

Engineers

(3)

Quantity Surveyors

Tort and Construction Law

The Common Law: Negligence

(123)

Introduction

(2)

The Characterization of Loss

(9)

Historical Overview

(1)

The modern genesis of the duty of care in relation to personal injury and damage to other property: Donoghue v Stevenson

(4)

The modern genesis of the duty of care in relation to pure economic loss

(7)

Dorset Yacht Co Ltd v Home Office and Anns v Merton LBC

(13)

The retreat from Anns

(14)

Henderson v Merrett

(8)

Summary of the position following Henderson v Merrett

(4)

Duties of Care and Pure Economic Loss: the Relationship

Between the Three Approaches

(3)

Evolution of the Hedley Byrne principle

(3)

Complex Structure Theory

(6)

Relevance of the Contractual Background

(1)

Introduction

(1)

Contract between the claimant and the defendant

(3)

No contract between the claimant and the defendant

(5)

Contractors and the Duty of Care in Relation to Personal Injury and Damage to Other Property

(2)

Construction Professionals and the Duty of Care in Relation to Personal Injury and Damage to Other Property

(4)

Intermediate inspection

(7)

Contractors and the Duty of Care in Relation to Pure Economic Loss

(1)

Introduction

(2)

Contract between the builder and the building owner

(16)

No contract between builder and claimant

114

(1)

Construction Professionals and the Duty of Care in Relation to Pure Economic Loss

115

(7)

Liability for the Negligence of Independent Contractors

122

(2)

The Common Law: Nuisance

124

Legislative Provisions

131

(1)

Defective Premises Act 1972

131

(4)

Building Act 1984 and associated regulations

135

(2)

Party Wall etc Act 1996

137

(8)

EC Legislation: Consumer Protection Act 1987

145

(10)

EC Legislation: Construction Products Regulations 1991

155

(5)

EC Legislation: General Product Safety Regulations 1994

160

Exemption and Limitation of Liability Clauses

Limitation of Liability Clauses in Construction Contracts and Professionals' Contracts

(3)

How the Clauses Are Construed

(2)

The Role of Insurance

(1)

Common Insurance Clauses

(2)

Effect of Insurance Clauses on Duties of Care and Liabilities under the Contract

(4)

Unfair Contract Terms Act 1977: Generally

(27)

Negligence Liability

(4)

Consumer Contracts and Standard Form Contracts

(6)

Unreasonable Indemnity Clauses

(2)

Sale and Supply of Goods

(6)

The Reasonable Test Applied to Section 3 Exemption Clauses

(1)

Categories of Exemption Clauses and the Reasonableness Test under the 1977 Act

(7)

Clauses Which Exclude Liability for Defective Performance Altogether

(1)

Clauses Which Exclude Liability for Damages for Breach of Contract and Substitute for a It a Liability to Replace or Repair

(1)

Clauses Which Seek to Limit Liability for Defective Performance to a Fixed Sum or a Sum Which is Expressed as a Percentage of the Contract Sum

(1)

Contracts Which Seek to Limit Liability to a Sum Which it is Agreed That a Contractor or Professional (Usually a Professional) Shall Insure Against

(1)

Contracts Which Provide for a `Net Contribution' Limitation of Liability in Which the Liability of a Professional Shall Be Limited to That Proportion of the Employer's Loss Which Relates to the Professional's Relative Responsibility Along with the Contractor and Other Professionals

(1)

Contracts Which Exclude Liability for `Loss of Profits, Loss of Use' and Other `Consequential Losses'

(1)

Sale or Supply of Goods and the Further Matters to Be Considered under the Reasonableness Test

(2)

Effect of Repudiation

(1)

General Terms and Severability

(1)

Effect of Different Types of Exemption Clause: Set Off

(2)

The Unfair Terms in Consumer Contracts Regulations 1999

(16)

Application

(4)

Unfair Terms and the Regulations

(5)

Unfairness and the Regulations

(4)

The Effect of the Regulations on Adjudication and Arbitration Provisions

(2)

Assessment of the Terms

(1)

Reform

Mistake, Misrepresentation, and Frustration

Common Mistake

(2)

Unilateral Mistake

(3)

Misrepresentation and the Misrepresentation Act 1967

(8)

Rescission

(2)

Frustration

Guarantee and Indemnity

Guarantee and Indemnity Contrasted

(8)

Common Forms of Bond: Their History

(4)

The Rule in Holme v Brunskill

(6)

On Demand Bonds and Conditional Bonds: Trafalgar House v General Surety

(8)

Cross Guarantees

(3)

The Intervention of the Courts to Prevent Calls on Bonds Both in the United Kingdom and Internationally

III. PERFORMANCE

Certificates and the Right to Payment

Simple Contracts: Lump Sum Contracts; Substantial Performance; Non-completion

(5)

Certificates and Payment

(3)

Non-approval or Certification by the Contract Professional or Employee of the Developer or Contractor and Wrong Certification

(7)

Schedules of Rates; Bills of Quantities; Milestone Payments

(1)

The Final Account; Certification of the Final Account; Effect of Final Certificates; Discharge from Further Performance by Final Certificate

(2)

Set Off

Time for Completion

Dates for Completion

(5)

Extension of Time Clauses: An Introduction

(9)

Effect of Discharge of Liquidated Damages and Recovery of Actual Losses

(6)

The Law Relating to Penalties

(8)

Extension of Time Clauses; Reasons for Extension of Time Clauses and the Contra Proferentem Rule in Relation to Liquidated Damages

(6)

The Grant of Extensions of Time and Its Effect

IV. BREACH, TERMINATION AND DAMAGES

Damages for Breach of Contract

Introduction

(1)

The Rule in Hadley v Baxendale

(10)

Language in Analysing the First and Second Limb

(3)

Employer's Remedies for the Contractor's Breaches of Contract

(17)

Damages Claimed for Defects Remedied During the Defects Liability Period

(1)

The Temporary Disconformity Theory or Heresy

(3)

General Damages

(1)

Where the Employer May Not Suffer All the Loss

(1)

Damages Against Professionals

(4)

Contractor's Remedies for Employer's Breach of Contract

(4)

How the Remedies Inter-relate to Claims under the Contract

(3)

Recovery of Loss Following a Settlement: The Rule in Biggin & Co Ltd v Permanite

(5)

Discharge from Further Performance by Breach; Fundamental Breach

(11)

Impecuniosity and the Additional Damage That Causes

(3)

New for Old

Determination or Forfeiture Clauses

Types of Forfeiture Clause

(1)

Determination for Cause

(5)

Strict Compliance or Contra Proferentem Rule

(8)

Repudiation

(4)

Determination without Cause and Remedies in the Event of Forfeiture

(3)

Liens, Bills of Sale, and Vesting Clauses in Relation to Plant and Machinery; Fixed or Floating Charges and Registration

(3)

Penalties

(1)

Relief against Forfeiture

V. CLAIMS

Loss and Expense

The Right to Order Variations; the Distinction between Variations under the Contract and a Variation of the Contract

(8)

Contractor's Claims under the Contract; the Most Common Types of Claim

(4)

Loss and Expense and Extensions of Time

(13)

The Principles Which Govern the Grant of an Extension of Time

(5)

The Principles Which Govern the Certification and Payment of Loss and Expense

(3)

Common Problems in the Examination of Extensions of Time and Loss and Expense

(3)

Concurrent Delay and Causation: Extensions of Time

(16)

Concurrent Delay and Causation: Loss and Expense

(3)

Programs and Computer Analysis

(9)

Ownership of Float

(15)

How are Late Variations to Be Assessed: On a Net or Gross Basis?

(6)

How Loss and Expense Is Calculated and the Essentials for Pleading and Putting Forward a Claim for Loss and Expense

(12)

Calculation of Loss and Expense

(1)

Prolongation Costs

(7)

Disruption Costs

(1)

Finance Charges

(1)

Management Time

(1)

Damages or Costs Payable to Third Parties

(1)

Loss and Expense and Rolled Up Claims

Limitation of Action

Rationale

(3)

Limitation Period for Contracts under Seal

(4)

Limitation Period for Contracts Not under Seal or Simple Contracts

(15)

Claims for Sums Due: Contractors and Professionals

(6)

Claims for Damages for Breach of Contract: Contractors

(2)

Claims for Damages for Breach of Contract: Professionals

(5)

Limitation Period in Tort

(13)

Latent Damage: The New Three-Year Period and the Fifteen-Year `Long Stop'

(5)

Limitation Periods for Guarantee and Indemnity

(3)

The Separate Cause of Action in an Arbitration Award

(2)

Actions on a Judgment

(1)

The Limitation Period for a Contribution

(2)

The Defective Premises Act 1972

(1)

Claims Pursuant to Other Statutes

(1)

Concealed Fraud and the Extension of the Limitation Period

(5)

Amendments to Court Actions

Injunctions and Specific Performance

Dealing with a Breach of Contract; Specific Performance and Mandatory Injunctions

(8)

Injunctions, Namely Orders Otherwise than Seeking to Enforce a Contract and `Damages in Lieu'

(4)

Interim Injunctions

Negative Interim Injunctions

(3)

Injunction to Restrain the Advertisement and Presentation of a Winding Up Petition

(1)

Positive Interim Injunctions

Bankruptcy and Insolvency

Insolvency

(1)

Effect of Contractor's Insolvency and Employer's Insolvency

(3)

The Effect of Clauses Which Entitle the Employer to use and Then Sell the Contractor's Plant and Equipment

(2)

Clauses Which Seek to Cause the Vendor Retain the Title in Goods until Payment

(7)

Clauses Which Require Retention to be Placed unto a Special Account

(1)

Clauses Which Permit Direct Payment of Sub-Contractors

(3)

Insolvency Set Off

VI. DISPUTES

Adjudication

Introduction

(10)

Adjudication in Practice

(29)

Is There a Construction Contract?

(7)

What Are Construction Operations?

(13)

What Are Not Construction Operations?

(8)

Definition of a Construction Contract

(13)

Construction Operations and Other Operations

(16)

Time and Place

(8)

Residential Occupiers

(6)

Contract in Writing

(12)

The Right to Adjudication: How It Arises

(11)

Notice of Intention to Refer a Dispute to Adjudication ('Adjudication Notice')

(13)

Introduction

(1)

When Should a Notice Be Served?

(12)

Limitations on Timing: the Crystallization of a Dispute

105

(95)

Key Principles

129

(1)

The word `dispute' is to be given its normal meaning

129

(2)

Notification of a claim is not enough

131

(12)

Discussions between the parties may infer that the claim is not admitted

143

(3)

Prevarication by the respondent may infer that he does not admit the claim

146

(5)

Silence by the respondent may infer that the claim is not admitted

151

(11)

The imposition of a deadline for responding does not automatically curtail a reasonable time for responding

162

(4)

Nebulous and ill-defined claims will not give rise to a dispute even if met with an express non-admission

166

(3)

The adjudicator only has jurisdiction to decide the dispute that has crystallized

169

(3)

How Can a Claimant Crystallize a Dispute in the Light of the Key Principles Outlined Above?

172

(22)

The Scope of the Dispute

194

(6)

The Importance of the Adjudication Notice

200

(18)

Widely Defined Dispute

210

(8)

Notice of Adjudication Defines the Scope of the Dispute

218

(4)

Drafting the Adjudication Notice

222

(30)

Remedies Which Can Be Sought

237

(5)

Nominating and Appointing the Adjudicator

242

(8)

Responding to a Notice of Adjudication

250

(2)

Challenging Jurisdiction

252

(22)

No Power to Decide Own Jurisdiction

252

(5)

Challenging Jurisdiction

257

(1)

Agreeing to give the adjudicator power to determine his own jurisdiction

258

(3)

Referring the question of jurisdiction to another adjudicator

261

(4)

Referring the question of jurisdiction to the court

265

(5)

Reserving the position

270

(2)

Additional option

272

(2)

Waiver

274

(3)

The Adjudicator's Response to a Challenge

277

(5)

The Referral

282

(27)

Witness Statements and Expert Reports

298

(6)

Confidentiality

304

(5)

Response Document

309

(40)

Burden of Proof

311

(4)

Standard of Proof

315

(3)

Positive/Negative Case

318

(8)

Witness Statements/Expert Evidence

326

(7)

Arguments not Referred to in Previous Correspondence

333

(3)

Practical Considerations

336

(5)

341

(2)

Hearing

343

(6)

Enforcement of an Adjudicator's Decision

349

(27)

Enforcement Prior to the 1996 Act

352

(2)

Enforcement Following the 1996 Act

354

(6)

Enforcing Parts of an Adjudicator's Decision

360

(6)

Summary Judgment

366

(10)

Procedure for Applications under CPR Part 24

376

(16)

Proceedings under CPR Part 8

392

(10)

Statutory Demand

394

(8)

The Effect of an Adjudication Decision: Does It Create a Debt or an Independent Cause of Action?

402

(22)

Non-1996 Act Adjudications

408

(16)

Enforcement Outside the United Kingdom

424

(18)

The Slip Rule

428

(6)

Resisting Enforcement

434

(1)

The Construction Contract Pre-dates the 1996 Act

435

(2)

No Proper Appointment

437

(5)

Not a Construction Contract and Therefore Outside the Ambit of the 1996 Act

442

(1)

Not Addressing the Issue Referred

443

(3)

Insolvency

446

(8)

Natural Justice and the Human Rights Act

454

(6)

Natural Justice

454

(6)

The Effect of the Human Rights Act 1998

460

(11)

No Dispute at the Time of the Service of the Notice of Adjudication

466

(3)

Costs: Provisions for Costs in Some Standard Forms

469

(2)

Interaction with Litigation and Arbitration

471

(5)

Limitation

476

Mediation and Alternative Dispute Resolution

Mediation and ADR: the Movement for Change and ADR

(9)

What Is Involved in a Mediation

(3)

`Rules' of Mediation; `Without Prejudice'

(3)

How Mediations Are Run; Opening Statements; Responses; Without Prejudice Meetings

(7)

The Role of the Mediator; the Role of Legal Advisors and Professionals

(3)

Settlement

(1)

Dunnett Mediations; Effect of Not Mediating upon Any Costs Applications Made at the End of Arbitration or Litigation; Cowl

Arbitration

The Arbitration Agreement

(5)

Enforcement of the Arbitration Agreement

(2)

The Arbitration Act 1996: the Theory of Party Autonomy

(4)

Arbitration Procedure

(14)

The Nominating Body and Choice of Arbitrator

(2)

Agreement of Terms with the Arbitrator and His or Her Fees

(2)

The Key Questions to Start with Which Influence Procedure

(3)

The Expertise of the Arbitrator

(1)

Techniques for Reducing Cost and Directions to be Given by the Arbitrator

(5)

Quality of Arbitrators: the Pool of Talent

(1)

Sealed Offers

(4)

Costs

(3)

Appeals

Litigation

Construction Litigation and the TCC Guide

(2)

Pre-Action Protocols and the Mischief They Seek to Avoid

(45)

Pre-action Protocols: the TCC Protocol

(3)

Aims of the Protocol

(9)

The Letter of Claim

(7)

Objections Taken to the Claim

(5)

Contents of the Letter of Response

(2)

Front Loading of Costs

(1)

The Counterclaim

(1)

The Meeting of the Parties

(5)

What the Parties Should Try to Agree

(1)

What to Do if Limitation is About to Expire

(3)

Pre-action Protocols: the Professional Negligence Protocol and Its Significance

(8)

The Specialist Court: the TCC

(17)

The Judges

(9)

The TCC in London

(3)

The TCC outside London

(4)

Small Claims, Fast Track Claims, and Multi Track Claims

(1)

How to Frame a Claim; the Essentials of a Claim

(14)

Introduction

(1)

The Elements of Pleading: the Claim

(5)

Quantum and Linkage

(3)

Elements of Pleading: the Defence

(5)

Claims Consultants and the Dangers of Defective Formulation of Claims

(2)

Schedules: `Scott Schedules'

(5)

Case Management

(5)

Issues for Consideration at a Case Management Conference

(2)

Directions

(2)

Experts

(50)

What is Expert Evidence

(3)

Protocol for the Instruction of Experts to Give Evidence in Civil Claims

(1)

Independence of Experts

(5)

Nature of the Evidence

100

(8)

Control of Expert Evidence

108

(4)

Single Joint Expert: Generally

112

(3)

Choice of Experts

115

(3)

Duties of Experts to Court and Client

118

(4)

Duties of Experts: Discussions between Experts

122

(2)

Instruction of Experts: the Party Appointed Expert

124

(5)

Instructions to the Single Joint Expert

129

(3)

Disclosure of Instructions to Experts

132

(1)

Duties of Experts on Receipt of Instructions: the Single Joint Expert

133

(4)

Duties of Experts on Receipt of Instructions: the Party Instructed Expert

137

(2)

Rights of Experts

139

(2)

A View

141

(2)

Disclosure

143

(7)

Notice to Admit Facts

150

(1)

Preservation and Sampling of Evidence

151

(2)

Summary Judgment

153

(1)

Offers to Settle; Payments into Court and Costs

154

(17)

Part 36 Offer by a Claimant

155

(2)

Part 36 Payment

157

(1)

Defendants Offer Otherwise Than a Part 36 Payment

158

(8)

Costs: Do Costs Follow the Event and the Amounts of Costs Recoverable? When They Can Be Recovered?

166

(2)

Standard Basis Costs

168

(3)

Judgments and Appeals and Reasons

171

VII. PROCUREMENT AND COMPETITION IN THE EUROPEAN COMMUNITY

Procurement and the European Community

Overview

(5)

Threshold Values

(3)

Excluded Contracts

(1)

Equality of Tenderers

(1)

Technical Specifications

(4)

Procedures for Seeking Tenders

(14)

Open Procedure

(3)

Restricted Procedure

(4)

Negotiated Procedure

(4)

Competitive Dialogue

(2)

Other Innovations in the New Directives

(2)

Criteria for Awarding Contracts

(3)

Post-award Variations

(1)

Enforcement, Penalties, and Remedies

(2)

Competition: The European Community

(17)

The EC Treaty

(5)

Application of Article 81

(5)

Application of Article 82

(4)

Enforcement, Penalties, and Remedies

(2)

UK Competition Law

(11)

The Chapter I Prohibition

(4)

The Chapter II Prohibition

(3)

Enforcement and Penalties

(3)

Corruption and Bribery

(476)

Public Officials Only

(4)

Private and Public Officials

(4)

Crime Committed Abroad

(1)

Law Reform

(466)

Appendix 1: Supply of Goods and Services Act 1982 (Extracts)

541

(1)

Appendix 2: Housing Grants, Construction and Regeneration Act 1996 (Extracts)

542

(7)

Appendix 3: Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649)

549

(8)

Appendix 4: Contracts (Rights of Third Parties) Act 1999

557

(5)

Appendix 5: Party Wall etc Act 1996

562

(12)

Appendix 6: Misrepresentation Act 1967

574

(2)

Appendix 7: The Insolvency (Amendment) Rules 2005 (SI 2005/527) (Extracts)

576

(2)

Appendix 8: Protocol for the Instruction of Experts to Give Evidence in Civil Claims

578

(10)

Appendix 9: Technology and Construction Court Guide

588

(50)

Appendix 10: Rules of Arbitration of the International Chamber of Commerce

638

(11)

Index

649

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Construction Contracts Law and Practice

Construction Contracts Law and Practice

9780199281244

0199281246

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

Amazon no longer offers textbook rentals. We do!

Construction Contracts Law and Practice

Construction Contracts Law and Practice

9780199281244

0199281246

Summary

Author Biography

Table of Contents

Supplemental Materials

Write a Review

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