Legal Practice Notes

What is estoppel? The core idea of estoppel is that, where one person ( A) has led another ( B) to act in reliance on a particular state of affairs, A is barred from retracting the words or behaviour that prompted B to act on that particular footing, provided specified conditions are met. In those circumstances, A is estopped (that is, stopped) from resiling from, or disputing, the existence of that state of affairs. The essence of any plea of estoppel is, indeed, the question of whether it would be unjust for a party to depart from a position previously accepted by, or presented to, another party. At times, the court will generally simply determine whether an estoppel has arisen, without necessarily identifying the variety concerned. In the particular setting of construction projects, and as illustrated by the examples in this Practice Note, the types of...

This Practice Note is a succinct reference for practitioners contrasting how the law of damages applies to claims in tort and in contract. For the core principles, see Practice Note: The remedy of damages—general principles. For detailed guidance on contract claims, see: Contractual breach damages and remedies—overview. For detailed guidance on tort claims, see: Damages in tort and negligence claims. For the concept of ‘special damages’ and ‘general damages’ unique to personal injury and clinical negligence pleadings, see: Past expenses and losses—overview. For drafting aimed at excluding and/or limiting liability for specified types of loss, see Practice Note: Exclusion and limitation of liability. General principles Compensatory function Where a breach of contract causes loss, damages are intended, so far as money can achieve it, to place the party in the position they would have been in had the contract been...

Practice Note The PSA is a model consultant appointment issued by the ACE ( Association for Consultancy and Engineering). This Practice Note focuses on the 2017 version (earlier ACE Agreement editions and related documents were released in 2009). The ACE PSA includes built-in guidance and is available in both digital and printed formats... ACE also issues further agreements, such as: Advisory, Investigatory and other services a sub-consultancy agreement a short form agreement an agreement intended for use by a consumer (none of which are addressed in this Practice Note) This Practice Note reviews notable provisions of the ACE PSA. It also examines the collateral warranty form designed to accompany the ACE PSA and signposts the separate ACE services schedules for civil and structural engineering and for mechanical and electrical engineering. For contemporary commentary from the time of...

Risk to a parent company of giving a PCG A holding or parent company typically does not trade itself; instead it owns assets, such as shareholdings in other entities and the retained earnings they produce. It also delivers strategic oversight and management across the group. Businesses adopt this model principally to curb exposure to risk. By moving corporate assets into a holding vehicle, those assets are shielded from the hazards tied to contracting operations. Trading gains can likewise be protected from the losses and liabilities that may arise within a subsidiary. There are fiscal benefits too, as losses recorded by one subsidiary can be set against profits generated elsewhere in the group. As groups expand, the structure often deepens, with multiple tiers of parents culminating in an ultimate holding company that directs the companies below. This layering creates distance between the assets held in the...

The Bribery Act 2010 ( BA 2010) criminalises: offering or giving a bribe to another person (active bribery) requesting, agreeing to receive, or accepting a bribe (passive bribery) bribing a foreign public official for a business or commercial organisation only, failing to prevent bribery The purpose of this Practice Note is to present a general overview of the active and passive bribery offences in BA 2010, ss 1 and 2, together with the offence of bribing a foreign public official under BA 2010, s 6; in essence, the giving or receiving of bribes. It does not include a synopsis of the corporate offence of failing to prevent bribery, which is dealt with in Practice Note: Failure to prevent bribery—the offence. This Practice Note should be considered alongside Practice Note: The Bribery Act 2010—an introductory guide. BA 2010 came into force on 1 July 2011. Conduct occurring prior to...

JCT contracts include comprehensive rules on termination, explaining the grounds on which parties may end matters and the effects that follow. Under these forms, it is the Contractor’s employment that is brought to an end, rather than the contract itself. This distinction is intended to ensure the contract’s post-termination provisions remain operative after termination. This Practice Note addresses the termination clauses in the JCT Standard Building Contract ( SBC) With Quantities 2011, 2016 and 2024 editions, found in section 8 of those agreements. Equivalent mechanisms also appear in other JCT contracts. It should be read in conjunction with Practice Note: Termination of a construction contract. Termination should always be approached with great care. If a termination is wrongful, or if the prescribed procedures are not followed precisely, the attempt to terminate may amount to a repudiatory breach of contract by the party seeking to do so....

Applications in the Technology and Construction Court Where your case proceeds in the Technology and Construction Court ( TCC), the TCC Guide governs any application you pursue, and its provisions will apply to every application you make. This Practice Note sets out guidance on applications in the TCC, with cross‑references to the relevant parts of the TCC Guide and their corresponding provisions. It concentrates on the step‑by‑step process of making an application in the TCC, spanning pre‑application considerations through to serving the issued application. For guidance on preparing for an application hearing after issue of the application, see Practice Note: Preparing for an application hearing in the Technology and Construction Court ( TCC). The following general points should be noted: The TCC Guide also offers practical information on proceedings in the TCC, but it is not a replacement for the CPR and must be read in...

This Practice Note highlights key distinctions between adjudication and litigation, arbitration, mediation and expert determination Litigation Adjudication offers a rapid, provisional, interim route to resolve disputes; its outcome is binding until finally settled by arbitration, litigation or agreement. The principles of natural justice that are fundamental in litigation also apply in adjudication. However, within adjudication, observance of natural justice yields to the overriding need for a determination within a very limited period. See Practice Note: Breach of natural justice in adjudication. Confidentiality In litigation the court’s judgment is public. Adjudicators’ decisions rarely reach the public domain because they carry little authority in other proceedings. In addition, parties to adjudication can enter into a confidentiality agreement. Procedure Litigation is controlled by the Civil Procedure Rules. For adjudication, the governing legislation—covering, among other things, timetable and process—is Part II of the Housing Grants, Construction and Regeneration Act 1998 and, where...

This Practice Note sets out circumstances in which you may opt to, or be directed to, appoint a single joint expert ( SJE) pursuant to CPR 35.1 and CPR 35.2(2). It surveys issues of selection, appointment, instruction, conduct, fees, and any track- or court-specific guidance. It also offers guidance on contesting an SJE’s conclusions. The Note further addresses the manner in which an SJE’s evidence is provided to, and relied upon by, the court, including through written questions and cross-examination. Experts and those instructing them should have regard to: all relevant CPR Rules and Practice Directions the Guidance for the instruction of experts in civil claims ('the Guidance') Practice Direction Pre- Action Conduct and Protocols, para 7 This Practice Note should be read alongside: Instructing an expert under the Guidance for the instruction of experts in civil claims ...

This Practice Note explores when and for what reasons you ought to pursue settlement of disputes, and the implications of failing to try to settle when directed to do so. For direction on who should participate in settlement discussions, the form a settlement might take, how it should be recorded, and the means of enforcement, consult the materials in this subtopic, including the following Practice Notes: Settling disputes—who, confidentiality and subject to contract Settling disputes—settlement offers ( Calderbank, WPSAC and Part 36) Settling disputes—how to document a settlement Settling disputes—drafting the settlement agreement Resolving disputes concerning settlement agreements What is settlement? A settlement is the product of agreement between the disputing parties to compromise and/or conclude the litigation, or to resolve matters where no proceedings have yet started. It comes about when one party makes an offer that is accepted by the other or others. Not all parties to the...

What is sectional completion? Where a construction contract divides the works into sections or parts, often intended to commence at different times, the employer will set distinct completion dates for each of those separate elements of the works. This arrangement is known as sectional completion. Sectional completion operates to the employer’s advantage because it enables earlier use of portions of the development than would be possible if the entire scheme had to be finished before any handover. In the absence of sections, the contractor would retain possession of, and occupy, the whole site until all works were complete. By contrast, in a residential development, the employer can start showing and selling units as soon as they are completed, rather than waiting for the whole development to be delivered. This in turn allows the employer to begin recouping some of its build costs at an earlier stage, while the...

Agreements entered into under section 106 of the Town and Country Planning Act 1990 ( TCPA 1990) (previously section 52 agreements), often called ‘planning obligations’ or ‘s 106 agreements’, are pacts between developers/landowners and local planning authorities ( LPAs) requiring developers to contribute to a range of infrastructure and services, such as community facilities, public open space, transport improvements and/or affordable housing, to mitigate the impacts of their development. They run with land and are enforceable against successors in title. See Practice Note: Planning obligations—key points and Checklist for drafting a section 106 agreement. Standard form planning obligations/section 106 agreement LPAs usually provide the first draft of the s 106 agreement, based on their standard agreements or model clauses. The developer then amends it and negotiations are undertaken to come to an agreed form. Although each s 106 agreement will be unique and respond to the...

Example delay schedule No. Scott Schedules are frequently invaluable and widely used in construction disputes. They serve to pinpoint the central issues between the parties and to present, in a single document for the judge, a concise outline of the opposing cases on an item‑by‑item basis. The call for a Scott Schedule in construction matters arises because such disagreements are often factually intricate and wide‑ranging. Shuttling back and forth between the parties’ competing (and often very lengthy) statements of case to compare what each says about a specific item can be both confusing and time‑consuming. A Scott Schedule is intended to provide a single source that sets out the rival positions clearly and accessibly. Scott Schedules are commonly used to contrast the parties’ respective stances in: defects cases final account/valuation disputes delay claims Scott Schedules take their name from one of the early...

Practice Note This Practice Note reviews the SBCC standard forms and highlights how they differ from JCT contracts. The Scottish Building Contract Committee’s strategy is to keep arrangements as consistent across the UK as possible, adopting JCT formats wherever feasible. Nonetheless, Scotland’s distinct legal system means certain differences in treatment remain. Accordingly, the SBCC editions adjust the JCT wording to reflect Scots law and terminology, without shifting the risk allocation or, in general, introducing other substantive changes. They mirror JCT colour bands, section titles and clause numeration and, where practicable, retain JCT naming conventions and dates. The SBCC suite is now issued as a single consolidated document, removing the need—unlike the former JCT 80 and 98 arrangements—to read a separate Scottish supplement alongside the JCT form. The 2016 suite appeared in two stages: Minor Works family, together with the Short-form Subcontract and...

This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...

Appointing a receiver offers creditors and certain other parties a means to safeguard their interests in a company’s assets. This note outlines the available forms of receivership and the key consequences of a receiver being appointed. For access to materials within the Receivership subtopic, refer to: Receiverships—overview. The following features apply across all receivership types: A company does not have to be insolvent to enter receivership Other creditors may still pursue claims despite a receiver being appointed During the receivership, the company’s dealings with property covered by the appointment are curtailed Receivership does not automatically lead to liquidation (the winding up of its affairs) Further points specific to particular receivership forms are outlined below. Law of Property Act ( LPA)/fixed charge receiver Under the Law of Property Act 1925 ( LPA 1925), a mortgagee may appoint an LPA...

This Practice Note explores the duty on contractors and consultants delivering services under construction agreements to apply reasonable skill and care in practice. It reviews the implied obligation under section 13 of the Supply of Goods and Services Act 1982 ( SGSA 1982) and considers express provisions requiring either ‘reasonable skill and care’ or ‘all reasonable skill and care’ to be achieved. It further assesses what difference the term ‘diligence’ makes when appended to the standard of care, when consultants or contractors face strict liability, and issues concerning fitness for purpose as applicable. It also points to other relevant material on the standards expected of contractors and consultants, including design responsibilities in particular, and fitness for purpose obligations in detail. Supply of Goods and Services Act 1982 SGSA 1982, s 13 provides that, in a relevant contract for the supply of a service where the...

What is a project policy? A ‘project policy’ usually means insurance the employer arranges to cover Contractors All Risks ( CAR) and public liability. It is for the employer, contractors, sub-contractors and suppliers, and applies to one named project. These are composite policies; subrogation rights between co-insureds do not exist or are waived... What and who is covered/not covered? What is covered? A project policy commonly insures CAR and public liability exposures arising during the works... What is not covered? It will generally exclude matters that would ordinarily fall under a professional indemnity ( PI) policy because: PI is placed in a distinct insurance market; and a project policy responds to occurrences during its term and only needs to operate for the project period. By contrast, PI responds to claims made during the policy period. As professional liability may run for 6 or 12 years, PI must be...

This Practice Note reviews ‘pay when paid’ and ‘pay when certified’ provisions in construction contracts, together with the relevant parts of the Housing Grants, Construction and Regeneration Act 1996 ( HGCRA 1996). In particular, it covers: HGCRA 1996, s 113—which bans pay when paid clauses, save where a third party has become insolvent HGCRA 1996, ss 110(1A)–(1D)—which prohibit ‘pay when certified’ clauses, introduced by the Local Democracy, Economic Development and Construction Act 2009 ( LDEDCA 2009) Pay when paid clauses ‘ Pay when paid’ clauses are provisions that make a payment obligation under a construction contract conditional upon a corresponding payment being received from a third party under a separate agreement......

Working out who controls the float on a construction project is often thorny (and controversial), and it regularly features in disputes about a contractor’s right to an extension of time in practice. This Practice Note explores what float means, which party benefits from it, the treatment of float under the Society of Construction Law Delay and Disruption Protocol ( SCL Protocol), together with the position regarding float within the JCT, NEC, FIDIC and CIOB standard form contracts. What is the float? Float is the surplus time, over and above the period the contractor truly requires, that is usually appended to the end of its construction programme. Put another way, it is the interval between the contractor’s expected actual completion and the date by which it is obliged under the contract to complete. The Society of Construction Law Delay and Disruption Protocol ( SCL...