Legal articles

Successful parties in adjudication are entitled to apply for judgment in default

During the final few months of 2009 an unprecedented raft of cases came before the Technology and Construction Court (TCC) concerning applications to enforce adjudicators’ decisions. Since this type of case first came before the courts in the late 1990s it has become settled law that the only grounds for challenging an adjudicator’s decision are that the adjudicator lacked jurisdiction to reach the decision that he/she has reached, or that the adjudicator has reached his decision without regard for the rules of natural justice.

Retention: what does your sub-contract say?

Many people are familiar now with the effect of clause 110 of the Housing Grants, Construction and Regeneration Act 1996 (“the Construction Act”). Under this clause, every construction contract must include an adequate mechanism for determining what payments become due under the contract - and when - and provide for a final date for payment in relation to any sum which becomes due.

Succession planning

An estimated two thirds of family businesses do not survive beyond the first generation of owners. A proportion of these failures can be directly attributed to inadequate succession planning. It is not only death but also disability or retirement that can destroy a business and interfere with plans for its successful continuation.

What is the legal status of a horse?

As with all matters legal, a horse's legal status depends on the circumstances. They can be defined as goods, agricultural animals, a conveyance or food depending on the circumstances in which the definition is being sought.

Adjudicators’ decisions and statutory demands

The courts will enforce adjudicator’s decisions unless the adjudicator lacked jurisdiction or there is a breach of the rules of natural justice. Once armed with a court order enforcing an adjudicator’s decision, there are a number of ways of seeking to enforce that order to obtain payment. In the case of MFP Foundations & Piling Ltd v Mr and Mrs Shaw, the court took the view that, although enforcement of adjudicators’ decisions generally operates on a “pay now, litigate later” approach, that did not override the principles set out in the Insolvency Rules.

Retention of title and insolvent customers

One of the ways to protect your business from the consequences of your insolvent customer's non-payment of goods is to ensure a robust and applicable retention of title clause can be relied upon. An effective retention of title clause operates so that the ownership of your goods stays with you until the goods (and in certain cases, all outstanding debts of the customer) have been paid to you in full. Retention of title clauses can be enforced against a liquidator or administrator, who will either have to return the goods to you or make payment for the goods if they wish to use them.

No waiver clauses called into question by Court of Appeal

The Court of Appeal has thrown into doubt the effectiveness of no waiver clauses in a commercial case with potentially far reaching ramifications. No waiver clauses are a very common feature of the ‘boilerplate’ provisions in commercial contracts and as such they appear in a huge number and variety of agreements. Until very recently there has been little court authority on the enforceability of no waiver clauses.
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