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

Dragonese?

 

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 https://londonpublishingpartnership.co.uk/extra-contractual-recoveries/.

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

Location:
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

Special Leave Refused in FDI v Yuanda

I am pleased to say that I prevailed this afternoon in the High Court in the special leave application made by Façade Design International against my clients Yuanda. The application was dismissed with costs on the basis that the appeal did not enjoy sufficient prospects of success.

As foreshadowed, the hearing was heard remotely. I was at my desk in Myponga Beach. My excellent junior Laura Mills was in Melbourne. The bench – Justices Keane, Gordon and Edelman – were in Canberra. As to my opponents, I presume that Brett Walker SC was in Sydney and Michael Roberts QC was in Melbourne, but really they could have been anywhere. My helpful instructing solicitors, Fusion Legal, were in Sydney. It is a weird way of doing things, for sure, but it works rather better than one might imagine. Even after the Covid thing goes away, I suspect we will never go back to the days when we would fly interstate for relatively inconsequential hearings, such as for directions. Hopefully, we will get back to being in court in person for proper argument. Continue reading

How stuff works, behind the scenes

These emails, obtained in the UK under freedom of information provisions, offer an interesting insight into how the administration of law is handed at the top level.

It is notable that they are not averse to a spot of backdating, when that is seen to be convenient!

 

Emails relating to Lord Sumption’s resignation from the supplementary panel:

Email from Lord Sumption to Lord Reed, 30/1/2021:

Dear Robert,

I am, as you know, still on the supplementary list of justices available to hear cases in the Supreme Court. I have not sat since the spring of 2019 and in September 2019 I asked Brenda not to be listed to hear appeals in view of public criticisms which I was making of the government. I very much doubt whether it will be appropriate for me to sit again at any time in the next three years which remain before I reach the age of 75. Unless you disagree, I think that the time has come for me to withdraw from the supplementary list.

(Line removed from email because it does not relate to this FOI request)

Jonathan

Response from Lord Reed to Lord Sumption, 30/1/2021:

Dear Jonathan,

I think that is the right decision, given your high public profile in relation to controversial questions of public policy.

(Several sentences removed from email as they do not relate to the FOI request).

Best wishes,

Robert

Email forwarded by Lord Reed to Vicky Fox, Chief Executive and Lord Hodge, Deputy President on 30/1/2021: Continue reading

More on Prevention as a A Rule of Law

I mentioned the other day the pending application for leave to appeal from Bensons Pty Ltd v Key Infrastructure Australia Pty Ltd [2021] VSCA 69, due to be heard shortly.

Until the Benson decision, the law as to whether the prevention principle is a rule of law, or a mere implied term (susceptible to be trampled over by casual express provision) had been usefully summarised in Hera Project Pty Ltd v Bisognin (No3) [2017] VSC 268, affirmed by the Victorian Court of Appeal as Bisognin v Hera at [2108] VSCA 93. I set out that summary below, as extracted for my book Extra-Contractual Recoveries for Construction and Engineering Work (now with the publishers).[1] In short, the answer was that it is a rule of law, and not merely an implied term. Benson, ignoring much authority, came to the opposite conclusion.

Meanwhile, Tony Marshall has kindly made available his further discussion of this vital issue, which had been excised from his paper in ICLR for reasons of length. So, with his further kind permission, I set out that further discussion below.[2]

The importance of the point can be bluntly stated: consider the position where an owner (or head contractor) prevents the contractor (or subcontractor) from doing the contracted work on time, by ordering extra work, or by not giving possession of the site, or some other act of prevention. The prevention might or might not be permitted by the contract, or a breach of contract. The contractor (or subcontractor) is not, for one reason or another, entitled to an extension of time, and so is inevitably in breach of the obligation to complete by the stipulated date, by no fault of his own.  The contract contains some weasel words which say there are no implied terms. Is the owner (or head contractor) entitled to liquidated or other damages for the failure of the contractor (or subcontractor) to complete on time? Even more starkly, does the law permit, “I Delay, You Pay” arrangements? If so, what, if any, are the constraints?[3]

Continue reading