Costs in Pre-Action Protocol Proceedings

McGlinn v Waltham Contractors Ltd & Others   McGlinn issued proceedings as a result of alleged defective  work in the building ...

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Default letters must be correct before termination notice.

The right to terminate a construction contract for reasons such as poor performance is a crucial contractual right. However, if exercising ...

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Activity Schedule

An activity schedule is a list of the activities which the Contractor expects to carry out in completing his obligations under ...

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Agreed Payment Schedule Expires = no more interim payments

In Grove Developments Limited v Balfour Beatty Regional Construction Limited [2016] EWHC 168 (TCC) the Court determined that the contractor was ...

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Agreements To Negotiate

Jones Day have published useful analysis on the latest developments on agreements to negotiate, which is detailed below. A recent decision ...

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An Employer’s Liability For An Independent Contractors Tort

Tinseltime’s machinery was damages by dust caused by the contractor working for Denbighshire County Council and the Welsh Assembly Government cut ...

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Architect Guilty Of Professional Incompetence

HELL IS A VERY SMALL PLACE This is the story of a common-or-garden domestic extension that took years to complete and ...

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Architect’s breach in carelessly issuing Completion Certificate

The appellant, SKK, awarded the respondent contractor, GMTS, a contract for the construction of two houses. SKK appointed an architect, Mr. ...

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Architects Certificates And L&AD’S

JCT SLEEPS WITH THE FISHES Standard forms are supposed to make things easy, but that wasn’t exactly the builder’s experience in ...

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Assignment

PRIVITY OF CONTRACT DOCTRINE LOOSENED. THIS DOCTRINE IS THAT ONLY THE CONTRACTING PARTIES CAN SUE OR TAKE ACTION AGAINST EACH OTHER ...

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Cap on direct loss & expense & damages upheld

It is common practice in construction and engineering contracts for contracting parties to seek to limit their contractual liability. The recent ...

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Causation And Remoteness

CAUSATION AND REMOTENESS If your little mistake turns out to be a massive mistake because of my little mistake, can you ...

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Check Every Possibility

AN EXEMPLARY DISASTER Fail to renew your public liability insurance at your peril, as this dreadful tale of a family-run electrical ...

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Closing Time is business related

In the recent case of Lehman Brothers International (Europe) (In administration) v ExxonMobil Financial Services BV, one of the questions the ...

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Collateral Warranty expiry dates

A recent TCC decision has interpreted a “no greater liability” clause in a collateral warranty given by a builder as importing ...

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Compounding The Interest

HAND OVER ALL THE MONEY You can recover damages for losses caused by breach of contract but probably not for the ...

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Constructing Letters Of Intent

A DIFFERENCE OF EMPHASIS Letters of intent are paved with good intentions, but can trigger endless legal manoeuvres. A joyous time ...

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Construction of commencing work before contract agreed.

Arcadis Consulting (UK) Limited (formerly Hyder Consulting (UK) Limited) v AMEC (BCS) Limited (formerly CV Buchan Limited) [2018] EWCA Civ 2222 ...

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Contract agreement and subject to contract.

The Background The case of Malcolm Charles Contracts Limited v Crispin and Another [2014] EWHC 3898 (TCC) concerned extensive works to ...

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Contractual allocation of concurrent delay upheld

The High Court has found that a clause in a construction contract which allocates the risk of concurrent delays to the ...

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Counsel brief fees

In Hugh Cartwright & Amin v Devoy-Williams and another [2018] EWHC 1692 (QB) (4 July 2018) (Davies J) the High Court ...

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Court Guidance on contractual interpretation ~ Jan 18

Contracts should regulate how a project is carried out. They establish a legal framework for the parties’ relationship that should also ...

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Courts give guidance on prospective or retrospective delay analyses ~ Jan 18

A TCC decision last week has considered the difference between prospective and retrospective approaches to delay analysis. The decision finds that ...

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Cross Examination Traps

How do you know if your cross examination is working? It’s simple. The witness breaks down and cries and turns into ...

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Damages Sampling must be Representative

High Court clarifies the position as regards claiming damages based on an extrapolated sample FOCUS: A recent High Court decision will ...

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Defective Premises Act

WATCH OUT FOR THE TENTACLES Are you familiar with the Defective Premises Act? You’re not? Oh dear … well before you ...

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Definitions of: “award”, “good faith” and “commercially reasonable”

  Understandably and rightly, parties faced with the prospect of potentially costly and lengthy litigation, usually seek to settle that litigation ...

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On-demand bonds and guarantees – What is the difference?

 The crucial question for the beneficiary of a security document, whatever it may be called (bond or guarantee), is “when ...

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Difficulties With Pure Economic Loss Claims

Catherine Mathews of Stephens Scown has published the following informative article on the above issue. It is a well established legal ...

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Disproportionate Legal Costs

DISPROPORTIONATE LEGAL COSTS Mott MacDonald vs Multiplex is a game of two halves – first there’s the disputing, then there’s coughing ...

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Do Residential Occupiers Need Witholding Notices?

LET THE SUPPLIER BEWARE You may have taken every precaution to make sure a contract is watertight but a consumer can ...

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‘Dot on’ principle reaffirmed

A recent case highlights the complexities of the subcontractor relationship compared to that of employer and main contractor, in terms of ...

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Duty of Care to 3rd Parties

The TCC held in BDW Trading Limited v Integral Geotechnique (Wales) Limited that a geotechnical engineer did not owe a duty ...

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Economic Duress

Commercial pressure exists wherever one party to a commercial transaction is in a stronger bargaining position than the other party and ...

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The effect of Final Certificates under JCT

A recent TCC decision has adopted a robust approach to the conclusivity provisions of the JCT Standard Building Contract in relation ...

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EoT ‘Dot on’ Principle Reaffirmed

Carillion Construction Ltd v Woods Bagot Europe Ltd & Ors [2016] EWHC 905 (TCC) This was a delay dispute concerning the ...

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Estoppel and Conditions Precedent

In Ted Baker v AXA [2017] EWCA Civ 4097 the Court of Appeal has for the first time considered the issue ...

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Expert Witness Supreme Court test for admissibility of evidence

Kennedy v Cordia Services LLP: background Ms Kennedy was employed by Cordia Services to make home visits to clients to provide ...

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Factors when deciding value of defects to deduct

What is the “appropriate deduction” for defects remedied by an alternative contractor? What is the “appropriate deduction” to be made from ...

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Failure to sign contract leads to no-cap for consultant.

We are currently seeing a flurry of cases in which the parties fail to conclude a written construction contract.  Normally, the ...

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Fitness for purpose obligations can co-exist with Reasonable skill & care obligations.

At first glance, one may assume that a case concerning offshore windfarms would be of little interest to developers outside the ...

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Formation of subcontracts, time bar clauses & UCTA

Today, notices and time bar provisions are found in most construction contracts. As Edward Colclough highlights, the 2016 case of Commercial ...

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Global Claim tips

A contractor will frequently be faced with multiple events that have the potential to delay or disrupt its contractual performance. Under ...

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Ground conditions clause & appendices defeated by appendix

The devil’s in the detail: ground conditions clauses trumped by tender documentation United Kingdom 06.12.2018 A recent TCC decision highlights the ...

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Ground conditions exclusions in numbered document trump standard clauses

In this case, the TCC considered risk allocation, scope of works and the interaction between the two and the judgment (or ...

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Health & Safety Fines

SKINT = LOWER FINES If a company’s negligence leads to loss of life, can it be given a lenient fine if ...

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Higher burden of proof for fraud allegations

PLEADING AND PROVING ALLEGATIONS OF FRAUD OR DISHONESTY: .MULLARKE -V- BROAD: USEFUL LINKS AND GUIDANCE October 2, 2014 · by .gexall ...

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How to calculate the effects of delay

This post was compiled by Kobus le Roux for Le Roux Consulting and published on the internet on 16/05/16. So today ...

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How To Judge

A CASE WHERE THERE ARE CONFLICTING CAUSES OF THE DAMAGE GIVES INSIGHT IN HOW TO JUDGE Here’s the strange case of ...

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Implied terms no longer reasonable

On the 2 December 2015[1], the UK Supreme Court clarified the law for implying terms into commercial contracts and confirmed that ...

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Important lesson in amending contract first – prior to problems arising.

Allseas UK Ltd (“AUK”) had been engaged by Total E&P UK Limited (“TEP”) as Principal Contractor to carry out offshore and ...

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Independent Contractors

AN EMPLOYER’S LIABILITY FOR AN INDEPENDENT CONTRACTORS TORT Tinseltime’s machinery was damages by dust caused by the contractor working for Denbighshire ...

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Interesting Remissionary Position

REMISSIONARY POSITION If you don’t pay a legitimate debt, you are liable for interest on top. That’s only fair. But what ...

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Interpretation of ambiguous liability cap

  Parties to construction contracts (and in particular professional appointments) will commonly include provisions in their agreements which seek to apportion ...

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JCT contract applied – although unsigned

In Spartafield Ltd v Penten Group Ltd [2016] EWHC 2295 it was found that the relationship between the contractor and developer ...

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JCT interest rate does not apply to Terminations

A recent TCC decision has decided that the interest provisions of the JCT Standard Building Sub-Contract Conditions apply only to Interim ...

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Joint Expert Communications

SEPARATE COMMUNICATIONS FROM A JOINT EXPERT There are some grey areas to being a joint expert witness, but one thing is ...

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Joint Names Policies

DO YOU HAVE BREAKDOWN COVER? Rolls-Royce didn’t take out joint-names insurance to cover construction of its new plant. When a leaking ...

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Judgement lessons from the Court of Appeal

This article was written and published on the internet by Matt Molloy Director at MCMS Ltd on 28/06/16. Almost a year ...

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Keep It Simple, Stupid

KISS AND TELL The only people who love contracts are lawyers. For everybody else – the plasterers, the foremen, the managers ...

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L&ADs Must Change If Contract Amended

Lindsay Hammond of Wragge Lawrence Graham & Co has published the following useful article on the following: LIQUIDATED DAMAGES OR A ...

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L&AD’s and loss of profits.

Summary: In Unaoil Ltd v Leighton Offshore Offshore PTE Ltd, the High Court examined a number of issues arising from the ...

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Lessons For Adjudicators

THE FOUNDATIONS OF A GOOD DECISION From boldness to fairness, reaching a successful adjudication result starts with paying heed to seven ...

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Letters Of Intent 1

PRACTICAL COMPLETION AND THEY STILL HAVEN’T AGREED THE CONTRACT! The dangers of contractor and subcontractor co-habiting out of wedlock were highlighted ...

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Letters Of Intent 2

PRACTICAL COMPLETION AND THEY STILL HAVEN’T AGREED THE CONTRACT! The dangers of contractor and subcontractor co-habiting out of wedlock were highlighted ...

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Liquidated Damages Principles

One reoccurring question we at Silver Shemmings Ash LLP are posed by our clients is whether the liquidated damages stipulated in ...

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Lump Sum Contracts

YOU BOUGHT IT, YOU PAY FOR IT Question: When does a main contractor have to pay a subcontractor for work that ...

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Mediation and costs sanctions.

With recent stark increases in court fees, new guidance from the TCC on proportionality and another case on unreasonable refusal to ...

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Mitigation of loss must relate to the breach.

In its judgment in Globalia Business Travel S.A.U. (formerly TravelPlan S.A.U) of Spain (Respondent) v Fulton Shipping Inc of Panama (Appellant) ...

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Net contribution clauses upheld

In a recent case, a housing association sued the architect, contractor, quantity surveyor and engineer for negligence and breach of contract. ...

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New Claims

CHOP, CHOP Mr Justice Jackson must wake up in a cold sweat thinking about Multiplex and Cleveland Bridge, because every time ...

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‘No Amendment’ clauses sunk by emails

“No amendment” clauses in construction contracts 21.01.2016  A Commercial Court decision published earlier this month has considered the enforceability of so ...

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No Greater Liability and Equal Rights of Defence clauses

A ‘No Greater Liability’ clause is a clause inserted in a collateral warranty which links the liability of a builder or ...

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No liability under the Defective Premises Act

The Court of Appeal has overturned a judge’s decision that the conversion works on a house were so extensive as to ...

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No Oral Modification clauses upheld

If my contract says I can amend it only by agreeing changes in writing with the other party, do agreed informal ...

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Options for recovering from insolvent companies.

In a decision of interest to construction industry participants, the English Technology and Construction Court confirmed that, in some circumstances, the ...

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Oral amendments to written agreement clauses?

I’m sure that you have all seen or read contracts containing wording along the lines of: “…This Agreement may not be ...

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Overpayments may not be clawed back.

Summary: An employer overpays a contractor and asks for the excess to be repaid. Surely a reasonable request? Not necessarily, said ...

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Payment Schedule expired may mean right to interim payment is lost

The Technology and Construction Court ( “TCC” ) in the recent case of   Grove Developments   Limited   – v – Balfour Beatty ...

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Personal contract or Limited Co?

Bain v Martin [2018] CSOH 83 is a cautionary tale. Parties to a verbal building contract ended up in expensive and ...

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PFI Termination Notices

PFI arrangements The PFI arrangement in question was for the design and construction of Roseberry Park Hospital in Middlesbrough. The Trust ...

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Practical Completion

Many a construction dispute turns on defects. A significant subset of those turn on whether the existence of defects prevents practical ...

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Practical completion and construction of contracts

he Claimant, Warwick University, employed Balfour, the Defendant, to design and build a National Automotive Innovation centre on its campus site ...

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Prevention Principle

FOULED BY YOUR OWN SIDE If you hire somebody to do something, then prevent them doing it, then you can’t sue ...

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Programming Problems

NOTHING IF NOT CRITICAL The epic struggle between Mirant and Arup over the Sual power station has finally ended in a ...

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Prospective vs Retrospective delay analysis

A TCC decision last week has considered the difference between prospective and retrospective approaches to delay analysis. The decision finds that ...

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Public Contracts Regulations 2006

TELL THEM A BEDTIME STORY If you’re a public authority inviting tenders, you should treat bidders like small children, eager to ...

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Public VS Framework Contracts

THE PEOPLE VS CAMDEN COUNCIL Government agencies are encouraging local authorities to adopt strategic procurement arrangements but the courts are taking ...

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Regularly & Diligently.

Most construction contracts require contractors to proceed with their works “regularly and diligently” (or an equivalent requirement such as “with due ...

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Relationships Not Partnering

THE SIMPLE SECRET OF SUCCESS The expert goes to Majorca to deliver a paper about the contractual side of building – ...

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Remoteness of tortious losses

Two companies have been found liable for the financial loss suffered by Network Rail when its apparatus was damaged due to ...

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Repudiation

ONCE MORE UNTO THE BREACH The Construction Act says it is lawful to down tools if you haven’t been paid what ...

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Repudiatory Breach?

THE BATTLE OF EASINGWOLD Margaret Tomlinson wanted an extension for her terraced home. Okay, said the builder, that will be £19,500, ...

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Responsibility for site investigation by 3rd parties

When 64 homes had to be demolished, the council claimed the architect had assumed responsibility for others’ errors The 64 brand-new ...

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Restrictive Approach to Concurrency Malmaison Principle – Sept 16

There is an ongoing debate as to the correct approach to take in relation to concurrent delay under construction contracts – ...

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Retentions Owned By The Builder

WHAT’S YOURS IS MINE A retention may be held by an employer, but the money does not belong to it. This ...

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For a successful delay claim – actual proof of delay is needed – not merely inference.

 The recent decision of the court in the dispute between the steelwork sub-contractors for the Shard (Cleveland Bridge UK Limited ...

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Tender Challenges

Great care must be taken over payment procedures and timings before and after practical completion, as ignoring them can prove to ...

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The death of good faith.

Two decisions of the courts in 2017 show how attempts to imply duties of good faith into contracts governed by English ...

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The Foundations Of A Good Decision

From boldness to fairness, reaching a successful adjudication result starts with paying heed to seven pillars, as set out by Mr ...

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