As a construction lawyer with a particular interest in retrospective delay analysis, I sometimes want to read Primavera or Microsoft Project files. Just occasionally, it would be useful to also write to these files where, for example, I am making suggestions to clients as to how a particular delay analysis should be done. But usually, I just want to read the files to check to see, for example, whether there are any constraints in an analysis which would show that it has been prepared using the “gross method” or some other illegitimate technique. In the past, I used to have access to Microsoft Project, and before that Open Plan, but having gone to the bar, I now have access to neither of these.
I spent most of last week in New Zealand, including a session on the delay and disruption in construction contracts. The session was in Auckland, run by CMC Asia Pacific, who seem to be doing rather well these days, and was well received.
BIM continues to be of great importance, and SoCLA is doing a great job of explaining what it is all about.
David Mosey will be in Adelaide to give a talk on from 6pm to 7.30pm on 11 November 2015. The topic summary is thus:
Building Information Modelling, Procurement and Contracts – does BIM require or benefit from new contract provisions and new procurement models?
A briefing by Professor David Mosey on current research, led by King’s College London and sponsored by the Society of Construction Law , as to how construction contracts and team selection processes can help make BIM work.
David is Director of the King’s Centre of Construction Law. He is also lead mentor for the UK Government trialling new procurement models that support the mandate for BIM to be used on all public sector projects by 2016.Continue reading →
The decision of the Supreme Court of the United Kingdom recently in Aspect Contracts (Asbestos) v Higgins Construction  UKSC 38 might well provide a good reason for adjudication losers who paid up on an adjudication determination in late 2009, or where it is coming up for 6 years since a payment was made pursuant to an adjudication determination, to think about dusting off their files.
The way works is like this. All around the world, adjudication is intended as a “pay now, argue later” scheme. If the adjudicator finds for a claimant, then the respondent has to pay up, but without prejudice to the respondent’s right to reclaim that amount in subsequent litigation or arbitration. But what is the basis of that right to reclaim?
During the currency of most formal building contracts, there is a contractual answer to be found in the final account provisions. After the contract work has been completed, these final account provisions typically require a calculation to be made of the amount eventually due under the contract. All the amounts that have been paid up to that point to take into account, and the balance is paid – or repaid – as the case may be. If the contractor has been paid more than he is entitled to, then the express terms of the contract provide a route whereby the principal gets the excess back.
In the absence of a final account provision, the right of the principal to recover any overpayment is much more problematic. There are certain circumstances where the principal might have a right of recovery in restitution, i.e. for money had and received, particularly where the money has been paid pursuant to a relevant mistake. It might be possible, for example, for the principal to demonstrate a relevant mistake if the contractor has defrauded her by misrepresenting the work that he has done. Somewhat more rarely, the principal might be able to demonstrate that she has paid as a result of duress; again, that duress would enliven a right of recovery in restitution. Yet again, in the even more improbable case that the contract or has done no work at all, the right of recovery would be enlivened by a total failure of consideration. These categories are conveniently summarised at Continue reading →