Interest is high for the Keating Chambers Webinar for the Society of Construction Law Australia taking place later today. 150 or so attendees are registered so far.
Members of my chambers will be talking about the Secretariat case, and related topics of dirty/clean experts etc. I will be talking about a number of Australian cases, including the recent decision in Apex v Cross River Rail about Chinese Walls.
I have mentioned on these pages before the decision of the UK Supreme Court in Cavendish v El Makdessi, Beavis v ParkingEye. It seems to me that the more interesting aspect of the decision is not so much in relation to liquidated damages, but rather what the court had to say about the doctrine of relief from forfeiture. Many (including me) had assumed that the doctrine had been essentially subsumed into legislative provisions dealing with mortgages and leases, but the court breathed new life into the doctrine, suggesting that – although very largely unused – it is applicable in a wide variety of situations.
In some respects, of course, black letter law has been in the ascendancy in recent years, the courts apparently being willing to accept the fiction that the terms of lengthy commercial contracts reflect what has freely been agreed. In many cases, this concept of “party autonomy” rides roughshod over the reality. In particular, few if any contractors or subcontractors have any real understanding of the full legal effect of an entire agreement clause, and even if they inwardly shudder a little when they read a Queen of Hearts clause in tender documentation, they are unlikely to have any real choice but to sign if they are to continue to do business.
The point about what the court said in Cavendish is that the application of the doctrine of relief from forfeiture does not involve rewriting contracts. Parties remain free to sign up to contracts containing onerous, even absurdly onerous, conditions. What the court can do is to restrain the unconscionable use of those conditions. This approach – splitting the concept of the enforceability of a right from the right itself – is not new in English law. It is inherent in the concept of laches and its statutory successor, limitation of actions. It is a concept widely applied in civil law.
As yet, litigants have not been pleading relief from forfeiture in English construction cases, and I am one of the few to plead it in Australian cases (none of which have yet reached trial). It may be that in Australia there is a more potent weapon: section 21 of the Australian Consumer Law, which is a “beefed up” re-enactment of section 51AC of the Trade Practices Act.
I will be joining some colleagues from chambers in a Webinar for SoCLA in a couple of weeks’ time: Thursday 20th May at 4.00 pm AEST.
The topic is Conflicts of Interest in International Arbitration. Which might sound a bit dull. But in fact, this stuff is really very interesting: it will focus on some important law in the January decision of the English Court of Appeal in Secretariat Consulting v A Company, and powers to injunct opposing expert witnesses off the field of play. The principles are relevant, not just to arbitration, but litigation as well.
If the decision is carried across into Australian practice, it might well turn out to be a powerful weapon in any litigation or arbitration involving expert evidence.