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PAYMENT NOTICES – HAVE THE STONES BEEN CAST ASIDE?

PAYMENT NOTICES – HAVE THE STONES BEEN CAST ASIDE? Payment under LDEDC Act 2009 – Is this still a game of sudden death? Talk to the Chartered Institute of Arbitrators Thames Valley Branch by Robert A Sliwinski FRICS FCIArb Barrister Chartered Arbitrator FRSA Adjudicator Mediator THE POSITION A YEAR AGO • ISG Construction Ltd v Seevic College [2014] EWHC 4007 (TCC) (03 December 2014) • Harding (t/a M J Harding Contractors) v Paice & Anor [2014] EWHC 3825 (TCC) (21 November 2014) • Galliford Try Building Ltd v Estura Ltd [2015] EWHC 412 (TCC) (27 February 2015) These cases started with a hard line on the payment notices causing a tremor through the industry. ISG Construction Ltd v Seevic College JCT Design & Build 2011. ISG made Application for Payment No. 13. There was no Payment Notice or Pay Less Notice. The contract provided that in the absence of a Payment Notice the Application for Payment became the notified sum and therefore the amount due. In Adjudication No.1 the Adjudicator found for ISG saying the application for payment became the default notice and this became the amount due. The Adjudicator had not valued the works. Seevic commenced Adjudication No.2 to value the Works and obtain a repayment of the sum claimed in Adjudication No.1. The Court enforced Adjudication No.1 but not Adjudication No.2 as the dispute had already been decided in Adjudication No.1. Harding (t/a M J Harding Contractors) v Paice & Anor Although decided before Seevic the case was not published until after Seevic had been heard by the same Judge. JCT Intermediate Form of Contract 2011. The...

NEC 3 – Risk Register – A Valuable Management Tool? by Robert A Sliwinski

NEC 3 – RISK REGISTER A valuable management tool? Clause 80.1 sets out the allocation of risk between the Employer and the Contractor and although not expressly stated the use of a Risk Register in the Contract is not intended to alter that allocation of risk.  In this article I do not deal with the risks as allocated by clause 80.1 but rather the use of and obligations arising out of the Risk Register which is dealt with in clauses 11.2(14) and 16 – Early Warning.   So if the allocation of risk is not meant to be altered by the Risk Register what is the Risk register for?  It is intended as a tool where risk is managed by the parties in a collaborative and farsighted manner.  The Risk Register is defined at core clause 11.2(14) as “a register of the risks listed in the Contract Data and the risks which the Project Manager or the Contractor has notified as early warning matters”.  Whilst this may seem a little vague the NEC does set out a minimum content for the Risk Register which should show a description of the risk along with a description of the action(s) needed to avoid or reduce that risk.  The idea is for each party to list the risks that they see within the contract and which they wish to be managed in order to avoid or minimise those risks.  This will require a certain level of prescience before the contact commences but fortunately those risks that were not or could not have been foreseen can be added to the register at a...