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Wilmot-Smith on Construction Contracts 4th Revised edition [Kõva köide]

Edited by (Barrister, 39 Essex Street Chambers), Edited by (Barrister, 39 Essex Street Chambers)
  • Formaat: Hardback, 830 pages, kõrgus x laius x paksus: 253x176x50 mm, kaal: 1546 g
  • Ilmumisaeg: 25-May-2021
  • Kirjastus: Oxford University Press
  • ISBN-10: 019883280X
  • ISBN-13: 9780198832805
Teised raamatud teemal:
Wilmot-Smith on Construction Contracts 4th Revised editionSuurem pilt
  • Formaat: Hardback, 830 pages, kõrgus x laius x paksus: 253x176x50 mm, kaal: 1546 g
  • Ilmumisaeg: 25-May-2021
  • Kirjastus: Oxford University Press
  • ISBN-10: 019883280X
  • ISBN-13: 9780198832805
Teised raamatud teemal:
Püsilink: https://www.kriso.ee/db/9780198832805.html
Märksõnad:
The fourth edition of Wilmot Smith on Construction Contracts continues to take a clear and practical approach to the law and practice relating to construction contracts in the UK. It provides comprehensive coverage of the substantive law and modern dispute resolution procedures in the field of
construction and gives clear guidance when seeking difficult answers.

Paul Darling Q.C. has joined Richard Wilmot-Smith Q.C. as co-editor. Together they have updated, refined and extended the work's coverage. The author team includes new and high-profile practitioners in the field of international arbitration (including Peter Rees Q.C. and David Bateson) and ADR (with
Edwin Glasgow Q.C. joining Marion Smith Q.C. in re-casting the chapter on mediation). David Sawtell has considerably re-cast the chapter on adjudication. The law on extra contractual claims (unjust enrichment) has been substantively revised and updated by a leading expert on unjust enrichment.

The work provides key practical tips including: where and when you issue proceedings; what the judges will expect and their preferences; and how trials can be made shorter. A separate section analyses enforcement of adjudicators' awards, covering recent case law on this area. This is carefully
examined and digested in detail to ensure the reader has an understanding of the pitfalls of enforcement.

Richard Wilmot-Smith QC and Paul Darling QC ensure that the work continues to provide an essential source of reference on this area of the law. Their practical approach and reliance on clear exposition is prevalent throughout this book, and it is allied with deep scholarship to secure its position
as a definitive work on construction law.
Table of Cases xxiii
Tables of Primary Legislation xci
Tables of Secondary Legislation ci
Table of European Legislation cvii
Part I The Contract
1 Contracts: Formation and Interpretation
3(72)
Introduction
Formation of Contracts
Invitations to tender/treat and the contractor's tender
Letters of intent
Subject to contract
The process of offer and acceptance
Consideration
Economic duress
Intention to create legal relations
What happens when work is done and there is no contract
Contractual Interpretation
Literalism and reasonableness
Context and 'factual matrix': What is admissible and what is inadmissible evidence of context
Individual rules of construction and interpretation actual and outdated
Implied Terms and Impermissible Terms
A course of dealing
Terms implied by statute
Housing Grants, Construction and Regeneration Act 1996 ('HGCRA')
Supply of Goods and Services Act 1982 ('SGSA')
Terms implied by common law
Criteria for the implication of a term into a contract: The basic criterion
Criteria for the implication of a term into a contract: Traditional terms examined
Impermissible terms
Rectification
Estoppel and waiver
Partnering Agreements and Good Faith Obligations
2 Standard Forms of Contract and Bespoke Contracts
75(58)
Introduction
The Elements of the 'Traditional Standard Form of Building Contract'
The basic warranties
Sub-letting and assignment
Prescription of the standard of work and quality and specification of materials
Obedience to instructions
Compliance with statute
Persons on site
Measurement: The standard method of measurement-contract sum adjustment
The right to vary or change the works
Insurance
Allied with insurance is the question of risk
Possession and time (and extensions of time) for completion
Certificates of completion and making good defects
Programmes and method statements
Provisional sums
Determination or forfeiture of main contracts
Fluctuations or increased costs
Nominated sub-contractors
Payment and certificates
Dispute resolution
Clauses which require alternative dispute resolution before litigation, arbitration, or adjudication proceedings
Notices
Prime cost contracts
Design and build main contracts
Management contracts
Forms of sub-contract
Back to back and indemnity
Sub-contract insurance
Variations
Progress and completion: Extensions of time and damages for delay
Loss and expense
Defects
Determination or forfeiture of sub-contracts
Payment and direct payment
Entire agreement clauses
Bankruptcy and insolvency clauses
The New Engineering Contract
Introduction and ethos
The Engineering and Construction Contract ('ECC'): Structure
Main options A to F
Secondary option clauses
Dispute resolution clauses and Z clauses
Main options C and Din detail: A target price
Compliance with contract and the spirit of mutual trust and co-operation
Early warning
Compensation events
Notification of compensation events
Termination
3 Extra-Contractual Claims: Unjust Enrichment
133(27)
The Legal Background to Claims
The Factual Context
Anticipated contracts that fail to materialize
Work done outside the scope of a contract (eg expired letters of intent)
Work done under a contract subsequently repudiated
Work done under a void or unenforceable contract
Establishing Enrichment
The enrichment cap
The date of enrichment
The measure of enrichment I: Money benefits
The measure of enrichment II: Non-money benefits
Linking the Enrichment to the Claimant
Corresponding loss and gain
Remote recipients
Establishing Injustice
Introduction
Mistake
Failure of basis
Failure of consideration in the construction context
Three-party cases
Defences
Change of position
Estoppel
Limitation
Illegality
Remedies
4 Assignment, Sub-Letting, the Contracts (Rights of Third Parties) Act 1999 and Collateral Warranties
160(21)
Where Assignment Is Expressly Prohibited
Contracts of a Truly Personal Nature
Assignment Savouring of Maintenance or Champerty
Statutory and Equitable Assignment
Statutory assignment
Equitable assignment
Assignment Subject to Equities
Assignment When There Is Insolvency
Assignment by the Contractor
Assignment by the Employer
Sub-Letting
Contracts (Rights of Third Parties) Act 1999
Collateral Warranties
Adjudication with Collateral Warranties
Part II Liability
5 The Roles of Professionals
181(20)
Background and Professionals Generally
Professionals and Building Information Modelling ('BIM')
The Architect
The Project Manager
Engineers
Quantity Surveyors
The Professional's Legal Rights and Liabilities
6 Tort and Construction Law
201(35)
The Common Law: Negligence
Introduction
Categorization of damage in the tort of negligence
The duty of care in relation to pure economic loss: Reliance
The position of the construction professional towards their employer
The position of the construction professional towards those who are not their employer
The liability in tort of contractors and sub-contractors and complex structures
The effect of contractual structure on tortious liability
Personal injury and other property
Intermediate inspection
Duty of care owed by the employer's professional to a contractor
Liability for the negligence of independent contractors
The Common Law: Nuisance
Legislative provisions
7 Exclusion and Limitations of Liability
236(28)
The Categories of Exclusion and Limitation of Liability Clauses
The Interpretation of Exclusion and Limitation of Liability Clauses
The Interpretation of Indemnity Clauses
The Importance of Insurance
The role of insurance
Common insurance clauses
Effect of insurance clauses on duties of care and liabilities under the contract
Business Cases-Unfair Contract Terms Act 1977
Generally
Negligence liability
The reasonableness test
Standard Form Contracts
Generally
Reasonableness
Sale and Supply of Goods
Generally
Reasonableness
Exclusion of set-off
Effect of repudiation
Severability
The Categories of Exclusion and Limitation of Liability Clauses and the Reasonableness Test
Clauses excluding liability for defective performance
Clauses excluding liability for damages and substituting liability to replace or repair
Clauses limiting liability for defective performance to a fixed sum or a percentage of the contract sum
Clauses limiting liability to a sum the contractor or professional will insure against
Clauses limiting liability to a net contribution
Clauses excluding liability for loss of profits, loss of use, and other consequential losses
Clauses providing for an indemnity by the innocent party against loss caused by the other contracting party
Consumer Cases-Consumer Rights Act 2015
Generally
Consumer contracts
Negligence liability
The fairness test
Case law
Adjudication and arbitration clauses
8 Mistake, Misrepresentation, and Frustration
264(16)
Mistake
Mistake as to terms or identity
Mistake as to underlying facts or law
Mistaken tenders
Adjudicator's mistakes and mistakes in expert determination
Misrepresentation and the Misrepresentation Act 1967
Rescission
Frustration
9 Guarantee and Indemnity
280(17)
Guarantee and Indemnity Contrasted
Common Forms of Bond: Their History
The Rule in Holme v Brunskill
On-Demand Bonds and Conditional Bonds: Trafalgar House v General Surety
Cross-Guarantees
The Intervention of the Courts to Prevent Calls on Bonds or Payments after Calls in the United Kingdom and Internationally
The international approach
Part III Performance
10 Certificates and the Right to Payment
297(13)
The Right to Payment under the HGCRA
The Right to Payment-Contracts outside the Scope of the HGCRA
Certificates and Payment
Non-Approval or Certification by the Contract Professional or Employee of the Developer or Contractor and Wrong Certification
Schedules of Rates; Bills of Quantities; Milestone Payments
The Final Account; Certification of the Final Account; Effect of Final Certificates; Discharge from Further Performance by Final Certificate
Set-Off
11 Time for Completion
310(19)
Dates for Completion
Extension of Time Clauses: An Introduction
Effect of Discharge of Liquidated Damages and Recovery of Actual Losses
The Law Relating to Penalties
Liquidated Damages after Termination
Extension of Time Clauses: Reasons for Extension of Time Clauses and the Contra Proferentem Rule in Relation to Liquidated Damages
The Grant of Extensions of Time and its Effect
Completion
Part IV Breach, Termination, And Damages
12 Damages for Breach of Contract
329(26)
Introduction
The Rule in Hadley v Baxendale
Language in analysing the first and second limb
Employer's Remedies for the Contractor's Breaches of Contract
The Role of Expert Advice
Damages claimed for defects remedied during the defects liability/rectification period
The temporary disconformity theory or heresy
General Damages
Where the employer may not suffer all the loss
Damages against professionals
Contractor's Remedies for Employer's Breaches of Contract
How the Remedies Inter-Relate to Claims under the Contract
Recovery of Loss Following a Settlement: The Rule in Biggin & Co Ltd v Permanite
Discharge from Further Performance by Breach; Fundamental Breach
Impecuniosity and the Additional Damage that Causes
New for Old
Where conventional or identifiable financial damage cannot be proved
13 Determination or Forfeiture Clauses
355(18)
Types of Forfeiture Clause
Determination for Cause
Determination without Cause
Strict Compliance
Repudiation
Employer's Default of Its Obligations to Make Payment
Remedies in the Event of Forfeiture
Vesting Clauses in Relation to Materials, Plant, and Machinery
Penalties
Relief against Forfeiture
Part V Claims
14 Loss and Expense
373(34)
The Right to Order Variations; the Distinction between Variations under the Contract and a Variation of the Contract
Contractor's Claims under the Contract; the Most Common Types of Claim
Loss and Expense and Extensions of Time
The Principles which Govern the Grant of an Extension of Time
The Principles which Govern the Certification and Payment of Loss and Expense
Common Problems in the Examination of Extensions of Time and Loss and Expense
Concurrent Delay and Causation: Extensions of Time
Concurrent Delay and Causation: Loss and Expense
Programs and Computer Analysis
Ownership of Float
How Are Late Variations to Be Assessed: On a Net or Gross Basis?
How Loss and Expense Is Calculated and the Essentials for Pleading and Putting Forward a Claim for Loss and Expense
Calculation of loss and expense
Prolongation costs
Disruption costs
Finance charges
Management time
Damages or costs payable to third parties
Loss and Expense and Rolled-Up Claims
15 Limitation of Actions
407(31)
Rationale
Limitation Period for Contracts under Seal
Limitation Period for Contracts not under Seal or Simple Contracts
Claims for sums due: Contractors and professionals
Claims for damages for breach of contract: Contractors
Claims for damages for breach of contract: Professionals
Limitation Period in Tort
Prospects for reform
Latent Damage: The New Three-Year Period and the Fifteen-Year 'Longstop'
Limitation Periods for Guarantee and Indemnity
The Separate Cause of Action on an Arbitration Award
Actions on a Judgment
The Limitation Period for a Contribution
The Defective Premises Act 1972
Actions for Sums Recoverable Pursuant to Other Statutes
Concealed Fraud and the Extension of the Limitation Period
Amendments to Court Actions
16 Injunctions and Specific Performance
438(13)
Injunctions
Injunctions: Orders Otherwise than Seeking to Enforce a Contract
'Damages in Lieu' of Injunction and Specific Performance
Interim Injunctions
Negative interim injunctions
Injunction to restrain the advertisement and presentation of a winding-up petition
Injunction to prevent the call of an on-demand bond
Public Contracts Regulations 2006
Positive interim injunctions
Part VI Regulation And Disputes
17 Bribery
451(19)
Introduction
The Bribery Act 2010
Background to the Bribery Act 2010
Bribery offences
Bribing a foreign public official
Failing to prevent bribery
Defences
Territorial scope/jurisdiction
Prosecutorial discretion and penalties
Civil Liability for Bribery
Introduction
Key concepts
Causes of action
18 Mediation and Alternative Dispute Resolution
470(22)
Introduction: The Definition of Alternative Dispute Resolution
Common Threads: Control, Confidentiality, and the 'Without Prejudice' Doctrine
Negotiation
Early Neutral Evaluation
Mediation
Direct Referral and Scheme-Related Mediation
Private Appointment: The Mediator
The Mediation Agreement
No Fixed Procedure
Specific Issues in Relation to Mediation Privilege, 'Without Prejudice' Doctrine and Confidentiality
The TCC's Support for ADR through the CPR
Timing of Mediation
Pre-Action and the Pre-Action Protocols
Before the First Case Management Conference
At Any Stage after the First CMC
Pro-Forma ADR Order
Costs of ADR Itself
The Assistance the TCC Will Provide to the Parties When Considering ADR
Developments in Mediation
The Way Forward
19 Adjudication
492(97)
Introduction
Application of the HGCRA
Is there a 'construction contract' and what are construction operations?
What are not construction operations?
Location of the works and executive exclusions
Residential occupiers
Contract made orally or in writing
The right to adjudication: How it arises
The Adjudication
Introduction
When should a notice be served?
The crystallization of a dispute
Key principles and Jackson J's propositions examined
How does a claimant crystallize a dispute in the light of these principles?
The scope of the dispute and the issue of a 'single dispute'
The importance of the adjudication notice
Widely defined dispute
Drafting the adjudication notice
Remedies which can be sought
Nominating and appointing the adjudicator
Responding to an adjudication notice
Challenging jurisdiction
Fees
Waiver
The adjudicator's response to a challenge
The referral
Witness statements and expert reports
Confidentiality
Response document
Burden of proof
Standard of proof
Positive/negative case
Witness statements/expert evidence
Arguments not referred to in previous correspondence
Practical considerations
Reply
Hearing
Enforcement of an adjudicator's decision; summary judgment and statutory demands
Enforcing parts of an adjudicator's decision; severance and multiple and successive adjudications
Non-HGCRA adjudications
Enforcement outside England and Wales
The slip rule: Under the HGCRA and otherwise
Resisting Enforcement
No proper appointment
Not a construction contract
Not addressing the issue referred
Natural justice and the Human Rights Act 1998
No dispute at the time of service of the adjudication notice
Set-off
Fraud
Payment notice decisions and subsequent adjudications
Adjudicator's decision issued out of time or referral notice served out of time
Enforcement resisted in separate Part 8 proceedings
Summary judgment granted but a stay of execution
Costs and Limitation
Costs provisions and Tolent clauses'
Limitation and restitution of monies paid pursuant to an adjudication decision
20 International Construction Arbitration
589(25)
The Arbitration Agreement
Enforcement of the Arbitration Agreement
The Arbitration Act 1996: The Theory of Party Autonomy
Arbitration Procedure
The nominating body and choice of arbitrator
Agreement of terms with the arbitrator on her or his fees
The key questions influencing procedure
The expertise of the arbitrator
Techniques for reducing cost and directions to be given by the arbitrator
Quality of Arbitrators: The Pool of Talent
Sealed Offers
Draft Sealed Offer
Costs
Appeals
Challenges on the ground of serious irregularity
Misconduct and Bias
International Arbitrations
ICC
LCIA
UNCITRAL
21 Litigation
614(77)
Construction Litigation and the TCC Guide
Pre-Action Protocols and the Mischief They Seek to Avoid
Pre-action protocols: The TCC Protocol
Aims of the protocol regime
The letter of claim
Objections taken to the claim
Contents of the letter of response
The Protocol Referee Procedure
The counterclaim
The meeting of the parties (mediation)
Early Neutral Evaluation ('ENE') and the TCC Court Settlement Process ('CSP')
ADR and costs
What the parties should try to agree
What to do if the limitation period is about to expire
Pre-action protocols: The Professional Negligence Protocol and its significance
The effect of non-compliance with the protocols
The Specialist Court: The TCC
The judges and court centres
The TCC in London
The TCC outside London
Small claims, fast-track claims, and multi-track claims
How to Frame a Claim: The Essentials of a Claim
Introduction
The elements of pleading: The claim
Quantum and linkage
Elements of pleading: The defence
Claims consultants and the dangers of defective formulation of claims
Schedules: 'Scott Schedules'
Case Management
Issues for consideration at a case management conference
Costs budgets
Costs capping
Directions
Disclosure
Experts
A view
Notice to admit facts
Notice to challenge the authenticity of documentation
Preservation and sampling of evidence
Summary judgment
The pre-trial review
Offers to Settle and Costs
Part 36 offer by a claimant
Part 36 offer by a defendant
Defendant's offer otherwise than a Part 36 offer
Costs: Do costs follow the event and the amounts of costs recoverable? When can they be recovered?
Costs in the event of a settlement
Costs: Standard basis and indemnity basis
Judgments and Appeals and Reasons
Index 691
Richard Wilmot-Smith QC is a barrister at 39 Essex Street Chambers, and a Bencher of Middle Temple.



Paul Darling QC is a barrister at 39 Essex Street Chambers.