A Farewell to Arms

I am pleased to be able to report that, after umpteen tests, my health scare is now over. I am told that I have just one more exploratory medical procedure to go, but believe that the recommendation for that is merely precautionary. Meanwhile, during the three months that I have been recuperating, I have recovered much of my previous rude health.

During this period of recuperation, I have handed over the whole of my caseload to other counsel, and have now decided that, rather than resume my practice as a barrister, and after some 44 years since I first started practising as a specialist construction lawyer, this is the appropriate time for a change.

Henceforth, I will practice as a pendulum arbitrator and mediator.

Pendulum Arbitration

I am one of the few construction lawyers in Australia with experience of pendulum arbitration, and am, I believe, the only arbitrator specialising in this form of dispute resolution. It is a form of dispute resolution which I have long regarded as much underused in the construction sphere offering, as it does, massive advantages in terms of reduced cost, increased speed and the opportunity for disputants to get on with their business without distraction. A fuller explanation of how pendulum arbitration works is here. And some Q&A.

A feature of pendulum arbitration is that it works best if the disputants have a high level of confidence that the pendulum arbitrator has the necessary experience and expertise in construction law to be able quickly and reliably to make an assessment of the strengths of their cases. I believe that I have that necessary experience and expertise.

Mediation

Mediation is, of course much better known. I have been occasionally mediating construction disputes since the 1990s although not, hitherto, as a mainstay of my professional work[1]. So far, I have never failed to resolve a dispute in which I have been appointed as mediator. I do not expect this track record to survive indefinitely, but I hope it will give confidence that I am a safe pair of hands in this capacity.

It will not be necessary for me to maintain my practising certificate in these new roles, and I do not propose to do so once my current certification runs its course.  This means that I part company with Keating Chambers, of whom it has been my great pleasure to be an International Member for some years, not only because of my friends there, who I have known since my days as a young lawyer in London, but also because of its ever increasing status as the leading set of construction law chambers in the common law world.

Other methods of dispute resolution

I remain a registered adjudicator in the Northern Territory, and a member of the Dispute Review Board  Foundation, and am available for appointments in those Continue reading

Praemonitus praemunitus

Praemonitus praemunitus (forewarned is forearmed) has always been a good motto, and I am pleased see that Richard Winward uses it to suggest that my new book is valuable for paymasters as well as contractors.

Happily, his review in Designing Building, the Construction Wiki is again favourable, concluding:

The book achieves a good balance between legal analysis and practical application … It should be a welcome addition to the bookshelves of contractors, clients/developers and their professional teams.

I have added the review to the collection of reviews.

Dublin in November

A link for the purposes of registering for the SCL Irish Conference – An overview of road, airport, marine & wind-farm construction disputes in Dublin in November has been posted by Arran Dowling-Hussey on LinkedIn:

Robert Fenwick Elliott from Keating Chambers gives the (virtual) key note The Society of Construction Law Dublin conference on 24.11.22. The event is a physical conference and all other speakers appear in person; to book:- https://lnkd.in/e_2BTfPB#construction
The when and where:
When
November 24th, 2022 9:30 AM IST to  4:30
Location
The Spencer Hotel
Excise Walk
Ifsc
Dublin 1
Ireland

Event Fee(s)
Quantity
Single place(s)

€ 150.00 (includes VAT of € 28.05)

 

Continue reading

All around the world…

I was expecting to be in the Supreme Court of Victoria on Friday (virtually) but that was been adjourned by consent. Tomorrow I will be in Auckland in New Zealand (virtually) talking at Brightstar’s conference Building and Construction Regulation and Law about (surprise surprise) Extra-Contractual Recoveries. Meanwhile, I have accepted an invitation from the indefatigable Arran Dowling-Hussey to give the keynote speech at the Society of Construction Law Ireland conference in November in Dublin (virtually), which sounds fun, and which might be even more fun if I’m able to get there in person.

It is hard not to have mixed feelings about this brave new world of virtual appearances. I used to spend a lot of time on aeroplanes, and to some extent of course it was wasteful to the point of absurdity (more than once, I have been asked to fly a thousand miles for a directions hearing). But there is something about being there in person which is missing from the virtual thing.

And from a selfish point of view, looking back, I think my Continue reading

Email trouble

My chambers introduced a new inter policy – we all have to install Microsoft InTune.  It seems to be something akin to an internet equivalent of those electronic tags they put on criminals.  I hate it. Longer and more tedious PIN & password requirements.  It slowed my Surface to a snail’s pace.

 

Anyway, no chambers email for the last hour.

 

To contact me until this gets sorted , please copy emails to me to robert@feconslaw.com.

Prevention Again, and All That

The Court of Appeal of Victoria, a couple of weeks ago, refused  in V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2022] VSCA 77 (2 May 2022) a stay of execution of the judgment in V601 v Probuild [2021] VSC 849 (22 December 2021) pending appeal. Past experience suggests that such a refusal diminishes the prospect of the appeal being pursued.

The decision is a lengthy one, at 1451 paragraphs over 458 pages, covering a number of matters including prevention.[1] The prevention point here was that the owner had prevented the contractor from putting in claims based (as required by the contract) on the Approved Contractor’s Program, by not approving the contractor’s programs. that is a relatively unusual application of the prevention principle, but not entirely unknown; it is referred to at page 217 of my book on Extra-Contractual Recoveries for Construction & Engineering Work.

The decision  claim about six weeks after the  High Court  refused special leave in Key Infrastructure Australia Pty Ltd & Ors v Bensons Property Group Pty Ltd [2021] HCATrans 185 (5 November 2021), where the issue sought to be appealed  was the nature of the  prevention principle, but Justice Digby  did not  refer either to that  special leave application, nor to the Court of Appeal’s decision in that case[2].  In that case, the Court of Appeal of Victoria found that the prevention principle is only enlivened where the prevention is a breach of contract, and further that it is merely a matter of implied term rather than rule of law. As I have explained elsewhere, the latter is probably a heresy (although not an entirely novel heresy) but the former clearly runs counter to considerable authority, and that authority was not referred to by the Court of Appeal. As such, it seems the decision was per incuriam. Further, the Court of Appeal found as a fact that there had been no prevention, and so in any event the observations of the Court of Appeal about the prevention principle were also obiter dicta. It appears that it was essentially on that basis that the High Court declined to give special leave to appeal – it not being a suitable vehicle to resolve the point.

Some other highlights from the V601 case include: Continue reading

ECR – Last Chance for Pre-Orders

We are down to the last few days now of the pre-order discount period for Extra-Contractual Recoveries, and I am pleased to say that people have been buying the book, notwithstanding that none of the construction law publications have yet reviewed it, and we are still waiting for completion of the printing process.

I am grateful for the suggestion of Julian Bailey of White & Case for his suggestion of London Publishing Partnership as the publishers for my book. He switched to them for his third edition of his 3 volume work Construction Law, in part because it enabled a massive reduction in the price of the book (which I thoroughly recommend, by the way; it really is the lawyers’ law book on construction law: whilst it does not have the history of Keating or Hudson, it is considerably more detailed at some 2,300 pages.  And so while construction lawyers might sensibly start with Keating or Hudson for a summary of the law on any particular construction law topic, it is then wise to look to Bailey for the more nuanced wrinkles).

At £195 in the UK and $395 in Australia, my book is not, perhaps, Continue reading

More Arch on Collins

For those following the Façade Designs International v Yuanda saga, an update:

  • FDI, having issued proceedings against Yuanda, has been ordered to provide security for costs, on the basis that there are credible grounds that it may not be able to pay the costs of Yuanda if ordered to do so. The initial tranche of security – to close of pleadings – is $200,000.
  • More unusual was the application that FDI’s solicitors Piper Alderman be restrained from acting for FDI unless and until an adequate information barrier (Chinese wall) be put in place.  This issue arose because it emerged that Piper Alderman partner Daniel Fitzpatrick, who had conduct of the case, had previously acted for Yuanda on a number of occasions when employed by Gadens. Following what Justice Delany described as “gradual movement on the part of Piper Alderman” over some months the requirements of a proper Chinese wall were eventually put in place, such that Piper Alderman were permitted to continue with a fresh team (not including Mr Fitzpatrick), but a costs order was made against Piper Alderman and FDI was made in respect of the application.

The security for costs order was made on the basis of the inference that FDI’s refusal to disclose its full financial position was motivated by a wish not to reveal liabilities, as to do so would likely confirm impecuniosity. This approach is sometimes characterised as the rule in Browne v Dunn. Justice Delany referred to the much more recent decision, just a few days earlier, in Wu v Bi.

I was instructed by Yuanda as leading counsel on both limbs of this, and so Continue reading