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



Dragon, the voice recognition software, is pretty good these days, if used with a decent computer and a decent microphone. But it does have its issues, sometimes misunderstanding what is intended.

I meant this morning to send a round robin email to a few people I know to give them the preorder details for my new book.  I was planning to send a test version of the email to my PA. But instead, my Lodestone application sent the round robin to a much wider group of recipients!

Dragon was open at the time, and I think it might have overheard me talking to my PA, and interpreted what it heard it as an instruction to send the email out to the wider group. Either that, or Continue reading

Preorder Details for Extra-Contractual Recoveries for Construction & Engineering Work

I am delighted to be able to say that my book Extra-Contractual Recoveries for Construction & Engineering Work – published by London Publishing Partnership next month – is now available for preorder.

Preorders are already coming in, obtaining the discounts applying for the next 3 weeks.  The publisher’s book page is at

Happily, the reaction so far has been good:

“This text, the magnum opus of an already impressive oeuvre, will make a formidable contribution to the domain of construction law and provide great value to counsel, arbitrators, judges and construction industry participants at all levels of the industry.”

— From the book’s foreword by Professor Douglas Jones, international commercial and investor/state arbitrator, and an International Judge of the Singapore International Commercial Court

“The merit of the book lies in the author’s encyclopaedic knowledge, but also in its engagement with the real-life business of setting up and running projects. It will delight all those (lawyers and construction professionals) in the business of claims and defending against them. To have such experience distilled in such a rigorous and systematic way is a gift to the reader.”

Philip Britton, co-author of Residential Construction Law (Hart, 2021) and Visiting Professor (Law), King’s College London

“To the unwary, a construction contract may give the impression of creating a complete universe of rights and obligations.  Yet any contract is merely foreground, against a wider landscape of common law, statute and sometimes even customary laws.  Contracting parties need to know where they stand from an overall legal perspective.  In Extra-Contractual Recoveries, Robert Fenwick Elliott shows us with great clarity the ‘Yang’ of construction law that nestles against the ‘Yin’ of the contract’s written letter”.

Julian Bailey, author of Construction Law (3rd edition, LPP, 2020) and partner at White & Case LLP, London

“Construction law is traditionally understood to be primarily a subset of contract law, as applied in detail via the common law and via standard and bespoke forms of contract. This understanding can obscure the growing importance of remedies which lie outside (or, adjacent to) this contractual realm. This book is valuable not only for bringing these extra-contractual matters out of obscurity but in its sheer generosity of insight, drawn from the author’s deep and thoughtful engagement at the forefront of international construction law discourse and practice over many years. The international construction law community, and the broader community it serves, will be all the richer for this book’s contribution.”

Dr Matthew Bell, Associate Professor and Co-Director of Studies for Construction Law, Melbourne Law School, The University of Melbourne

The book took me really Continue reading

Extra-Contractual Recoveries in Tasmania

SoclalogoI am pleased to say that the paper I have proposed for the Society of Construction Law Australia’s conference this year in Tasmania – EXTRA-CONTRACTUAL RECOVERIES: 12 HIDDEN OPPORTUNITIES AND RISKS – has been accepted.  Subject to some unwelcome relapse into Covid hysteria, this means that I will be in Hobart in person at the beginning of May. SoCLA’s website announces the conference as follows:

SoCLA 2022 National Conference “Getting Risk Right”

Thursday 5 May 2022 to Saturday 7 May 2022

Hobart Function and Convention Centre

The National Conference is a highlight of the SoCLA year.

The 2022  National Conference will be held from 5 – 7 May 2022 in Hobart, Tasmania.

The Conference also incorporates the presentation of the Brooking Prize and the grand final of the Charrett Moot.

More information can be found here.

We have all spent far too long cooped up, and this conference should be a welcome breath of fresh air. Hobart is great fun, and I encourage as many people as possible to attend in person. I certainly look forward to being able to catch up with friends in the profession in the real world, and not merely virtually. Over the past couple of years, I have become – like others – a veteran of virtual hearings and conferences.  Virtual hearings are rather better than I had expected, but there is something dull and lifeless about virtual conferences.  A lot of what one gets out of conferences is what passes outside of the lecture rooms, and besides, some human contact between practitioners helps to oil the wheels of the legal profession.

As it happens, the conference falls just a week before the publication date for my book on Extra-Contractual Recoveries for Construction & Engineering Work, due on 12th May.  Printing for that is due to happen next month: the page count has turned out at 518 pages for volume I and 752 pages for volume II.  The conference paper will give me an opportunity to introduce just some of the routes that I discuss in much more detail in the book to an Australian audience.

The abstract for my paper is as follows:


Continue reading

An Honour

It was a great pleasure to hear today from Simon Tolson, the Honorary President of TECSA – the Technology and Construction Solicitors Association in the UK – that

the Committee has resolved to make you an Honorary Member of TECSA from this January in recognition for your past contributions to the Association. It reflects your great strides as Chairman and your long service from ORSA/TECSA’s formation particularly with Technology, the advent of Adjudication, ADR and Litigation.

I know you are a barrister but we have arranged the constitution to permit such recognition.

Simon is an old friend, and now senior partner of the law firm I founded in London: Fenwick Elliott LLP.

TECSA does excellent work, and I know that its voice has long been heard in relation to legislation and rules concerning the practice of construction law; it was a privilege Continue reading

Yuanda Transcript

One of the fun things about the High Court (well, fun or not, I suppose, depending on how things turn out) is that they publish transcripts of special leave applications. So, even though the court says precious little by way of reasons, it is possible to see what was said in argument.

Most of my work is, by its nature, confidential, and so I can say nothing about what happens in mediation, DRBs, arbitrations and the like, however interesting those proceedings may be.  To be in a public court is a bit of rarity for me, these days.

Anyway, for those who might be interested, the transcript in the Yuanda case is thus: Continue reading