Mon06262017

Last updateTue, 24 Feb 2015 5pm

Burges Salmon LLP

Burges Salmon LLP

Andrew Ross advises on the use and maintenance of risk registers in NEC3 contracts

The NEC3 suite of contracts expressly provide for maintaining a risk register but risk registers are commonly misunderstood and misused. In this article I explain how to use and maintain a risk register as a practical tool in the administration of an NEC3 ECC Option A form of contract.

Brioney Thomas and Grace Dawson Stephens weigh up a recent decision on penalties

Practitioners should take note of the recent application of the law on penalties in Vivienne Westwood Ltd v Conduit Street Development Ltd [2017]. Although a first instance decision, the case provides a welcome indication of how the courts are likely to use the restated principles set out in Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis [2015].

Michael Ward reflects on recovery under cross-undertakings in freezing injunction cases

Cross-undertakings in damages (CUDs) are given by an applicant for a freezing injunction, and are designed to protect the respondent from loss arising from the injunction. Inquiries into calculating such loss are typically complex and expensive pieces of litigation. Further, they can result in significant awards; in the recent case of Fiona Trust and Holding Corporation v Privalov [2016] Males J awarded approximately $60m for lost profits.

Stephanie Rickard and Punim Anda examine a recent decision on the classification of public works contracts

The case of R (Faraday Development Ltd) v West Berkshire Council [2016] will be of interest to local authorities and developers alike. The judgment provides detailed guidance on how a land development agreement can be structured so that the resulting contract is outside the scope of public procurement law.

Patrick Parkin and Premila Patel report on recent updates to Contracts Finder

The Crown Commercial Service has issued updated guidance on the use of Contracts Finder – the government’s online database for public procurement opportunities and contract awards (‘Procurement Policy Note 07/16’).

John Houlden and Adrian Martin consider the handling of TUPE in procurement documents

A bid team treads a delicate line when it seeks to present a confident and apparently certain solution to a purchaser’s needs if that solution will involve changes for employees. A bidder should therefore have regard to the potential employment law ramifications of what it says in its bid document.

Alastair Morrison and Rose-Anna Higgins consider the details of the increased stamp duty land tax burden for buyers and their advisers

George Osborne’s 2016 Spring Budget introduced a number of changes that will affect UK real estate, which are set out below.

John Houlden, Stephanie Rickard and Patrick Parkin discuss the use of new standard forms for public procurement notices

The European Commission recently published a set of new and revised standard forms for publishing public procurement notices (Implementing Regulation (EU) 2015/1986). The Crown Commercial Service (CCS) published a policy note (Action Note 17/15) on 2 December 2015 confirming government policy that all contracting authorities should use the new forms.

Patrick Parkin and John Houlden have news on the enforcement of framework agreements

Public authorities commonly use framework agreements to put in place a roster of preferred suppliers from whom they can quickly call off supplies or services when they arise. Frameworks can be set up for use by a number of different public authorities (eg groups of local authorities) by one entity, cutting down the need for each to procure similar requirements in parallel. When one of those authorities subsequently uses the framework, any challenges to fairness are likely to be focused principally on the call-off process. However, in principle they would also relate to the framework itself.

John Houlden and Richard Binns report on Edenred

The English High Court has stayed another contract award, perhaps indicating an increased willingness to maintain automatic suspensions under Reg 47(G) of the Public Contracts Regulations 2006 (the Regulations) pending an early/expedited trial.

Brioney Thomas reviews recent case law on drafting notices

Recent cases have provided a reminder of the importance of the choice of language used when drafting. In particular, the courts have looked again at the distinction between wording in relation to notices which are classed as ‘mandatory’, ‘directory’ or ‘permissive’.

Stephanie Rickard comments on a recent decision on the definition of public works contracts

The recent opinion issued in Impresa Pizzarotti v Comune di Bari [2014] provides an example of how developers have tried to get around the procurement rules but have not always been successful.

Ian Tucker looks at the conflict between commercially sensitive documents and disclosure

Confidentiality is always an important matter for any commercial business. Understandably, businesses do not want their competitors gaining a commercial advantage from an insight into their activities. Commonly one of the first issues raised in disputes is ‘will my documents have to be shown to the other side or, worse, the public?’.

John Houlden and Brendan Ryan highlight how public authorities might rely on the new EU procurement regime prior to UK transposition

A new EU public procurement regime has entered into force but UK implementing legislation may take some time to enact. Does the new regime have any application in the meantime?

John Houlden and Brendan Ryan discuss information sharing in government procurement exercises

The Cabinet Office has issued a procurement policy note (PPN) (3 February 2014), aimed at ensuring procurement information relating to bidders can be shared across central government bodies. Such information sharing is, according to the Cabinet Office, necessary to ensure the Crown behaves as a ‘single intelligent customer’.

Ian Tucker and Charles Crowne discuss a recent ruling on retention of title

Retention of title clauses are widely used in commercial contracts by sellers trying to preserve their right to reclaim goods until payment has been made in full. They are often combined with direct guarantees, letters of credit and/or restrictions on how the goods can be dealt with prior to payment in full being made.

Liz Dunn and Stephen Humphries explain the opposition to HS2

The High Speed 2 (HS2) rail project has recently generated considerable press interest. The two-phase national scheme, designed to link a number of England’s major cities, has simultaneously been criticised as an unnecessary waste of tax payers’ money that will cause irreparable environmental damage, and praised as a key driver for business growth between London, Birmingham, Manchester and Leeds (or, those areas and London, depending on where you live). HS2 came under considerable scrutiny during the party conference season, especially from Ukip who are vehemently opposed to scheme, with Nigel Farage dismissing the project as ‘bonkers’. Although HS2 initially secured cross-party support, as time goes on, and the likely costs of the scheme become clearer, the government is increasingly criticised for having focussed too much on journey time reductions as the main justification for the proposal. HS2 increasingly looks like it will be one of the political footballs of the next election.

Mary Gaskins and Sarah Woodsford summarise guidance and practice points on freezing orders in UL v BK (Freezing Orders: Safeguards: Standard Examples)

In June 2013, Mostyn J gave judgment in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] regarding the application by a wife to continue a freezing order that had been made without notice to the husband in February 2013.

Adrian Martin discusses whether the introduction of tribunal fees could be a breach of the right to a fair trial under the European Convention of Human Rights

In recent months, a number of changes or proposed changes to the employment tribunal system have been announced. These include: the move to unfair dismissal cases being heard by employment judges sitting alone, Underhill J’s review and re-write of the employment tribunals rules of procedure, and the government’s proposal to charge fees in the employment tribunals. The proposed introduction of fees is the most controversial of these. It has led to a number of concerns being raised about access to justice, including a suggestion that the introduction of fees could be in breach of the government’s obligations under the European Convention of Human Rights (the Convention).

Tim Heywood and Patrick Parkin assess the significance of SMEs in procurement policy

Here in the UK, central government is striving to make a reality out of its stated ambition of creating a ‘Big Society’.

The conduct of Hamar at tribunal reveals valuable points of practice, as John Barnett explains

Like many tax advisers, I have taken cases to tribunal only rarely, having had one case – Corbally-Stourton v HMRC [2008] – before the Special Commissioners and now one – Hamar v HMRC [2012] – before the First-Tier Tax Tribunal. This article reflects on Hamar.