NEWSLETTER : NOVEMBER 2012

Programme
Unless marked otherwise, the following meetings are free to members and guests.
Location maps are now always available on the website.
All are welcome but for those meetings where the organisers telephone or email is given,
it would be helpful if you could please let them know of your intention to attend.
London

Thursday,
1 November

Tuesday,
6 November

And What About The Client?

Joint SCL/TECBAR 2012 Annual Lecture
Speaker(s):
Peter Rees QC
Chairman:
Chantal-Aime Doerries QC
Venue:
The Royal College of Surgeons, 35-43 Lincoln's Inn Fields,
London WC2A 3PE

5.30 pm

Unforseen Ground Conditions

Ellis Baker and Michael Turrini
Speaker:
Chairman:
Richard Harding QC
Venue:
National Liberal Club, Whitehall Place, London SW1

6.30pm

Thursday,

Junior SCL Christmas Party

22 November Venue:
The Walkabout Temple Beach Club, Temple Station,
Organiser:

Temple Place, London WC2R 2PH

rbailey@fenwickelliott.co.uk

6 for 6.30pm until late

Numbers are limited and places will be allocated on a first pay basis. Please therefore respond as
soon as possible in order to avoid disappointment. Cost 24 inc VAT.
Tuesday,
4 December

Joint SCL/TECBAR Meeting

Concurrent Delay Revisited
Speaker:
John Marrin QC

Chairman:

Sir Anthony May

Venue:

National Liberal Club, Whitehall Place, London SW1

6.15pm

Tuesday,
5 February

Disruption evaluation - differences between Civil and Common Law approaches

under FIDIC Red Book Conditions
Speaker(s):
Chris Ennis (Davis Langdon, London) and
Wolfgang Breyer (Breyer Rechtsanwlte, Stuttgart)
Chairman:
Chantal-Aime Doerries QC
Venue:
National Liberal Club, Whitehall Place, London SW1
6.30pm

Friday,
8 February

SCL Lunch at the Brewery

Speaker:
George Clarke - The Restoration Man
The Brewery, Chiswell Street, London EC1Y 4SD
Venue:

12.30 for 1pm

Please note the online booking system for this event will be open on Wednesday 7th November
2012 at 9.00am.

Birmingham

Tuesday,
Adjudication and the courts: the jaws that bite and the claws that catch
13 November Speaker:
Justin Mort, Keating Chambers
Chairman:
Nichola Vine
Venue:
Mills and Reeve, 78-84 Colmore Row,
Birmingham B3 2AB
5.45 for 6pm
Organiser:
Ian.Yule@Weightmans.com
Bristol

Thursday,
Evaluating Disruption Costs
15 November Joint Seminar with the Adjudication Society
Speaker:
Christopher Ennis, Davis Langdon
Chairman:
Mark Wheeler
Venue:
Bristol Hotel, Prince Street, Bristol BS1 4QF
Organiser:
Tom.Wrzesien@TLTsolicitors.com
Thursday,
24 January

Friday,
15 March

Defending a PI Claim: 10 things you should know

Speaker:
Peter Mansfield, RPC
Chairman:
Frances Forsyth, EC Harris LLP
Venue:
Bristol Hotel, Prince Street, Bristol BS1 4QF
Organiser:
chloe.flatley@echarris.com
SCL Lunch in Bristol
Speaker:
Christine Hamilton
Venue:
Brasserie Blanc, Cabot Circus, Bristol BS1 3DF
Organiser:
nicola.huxtable@drivertrett.com

5.45 for 6pm

5.45 for 6pm

12 for 1pm

Please note: Block bookings by firms will be limited to 2 tables each. All places will be allocated
on a first paid, first served basis. Cost: 75.00 plus VAT = 90.00
Eire
Friday,
7 December

SCL Lunch in Dublin

The story of Croke Park and Gaelic Games and the decision to open the doors to
Rugby and Soccer
Speaker:
Venue:
Organiser:

Micheal O'Muircheartaigh
Croke Park Stadium, Cusack Suite, Jones Road,
Dublin 3, Ireland
sbryson@MHC.ie

12 for 1.00pm

Cost 75 per head, including VAT. Block bookings by firms will be limited to 2 tables each. All places will
be allocated on a first paid, first served basis. Each table will seat 10 people. Croke Park Stadium Tour:
5.00 per head.

Monday
4 February

Joint Meeting of the Society of Chartered Surveyors in Ireland and the SCL
Implied terms in construction contracts legal principles and examples in practice
Speaker:
John Lyden
Venue:
Rochestown Park Hotel, Rochestown Road,
Douglas, Cork
6.15 for 6.30 pm
johnlyden@eircom.net
Organiser:

Leeds
Tuesday,
13 November

Resistance is futile? Defending claims under Performance Bonds

Speaker:
Thomas Crangle
Venue:
Leeds Metropolitan University, Lecture Theatre B, Rose Bowl,
Portland Way, Leeds LS1 3HB
6.15pm
jhawkswell@thkp.co.uk
Organiser:

This seminar will consider the main types of bond used in the construction industry: retention bonds;
conditional bonds; and on-demand bonds, and will look at the practical arguments that can be raised by
contractors in order to defeat a call on a bond. It will also look at the pitfalls that employers need to be
aware of when making a call on a bond in order to minimise the risk of it being successfully resisted.
There is no charge for attendance at the seminar, though if you do wish to attend please email Jonathan
Hawkswell. CPD points are available for solicitors.
Further events are listed at www.scl.org.uk
We are keen to receive suggestions for speakers and topics both for the London and the Regional
programmes:Please
send
your
ideas
to:
keithkirkwood@benningtongreen.co.uk;
rchampion@championpearce.com; jonathan.pawlowski@collyerbristow.com and julian.bailey@cmscmck.com;

From the Chairman

On 9th October the Society held its Presidents Reception for Sir Anthony May. This was Sir Anthonys
final reception as our President. It was with great sadness that I announced that he was stepping down that
evening as our President after 8 years. The past 8 years have seen a remarkable advance in the Society both
in the UK and throughout the world. Sir Anthony commented in his final speech as our President on the
significant increase in membership over the years and on this being attributable to the diverse make up of
the Society bringing together not just Lawyers but all disciplines from all sides of the construction industry
with over 2,300 in the UK and a similar number in our sister societies around the world.
All of Council are extremely grateful for all of the help, support and assistance that Sir Anthony has
provided the Society and in particular the Chairmen of the Society over the last 8 years.
I was also very pleased to announce at the Presidents Reception that The Right Honourable Lord Justice
Jackson has agreed to take over our Presidency and I am delighted to welcome him as the President of our
Society.
Lord Justice (Rupert) Jackson has been a Lord Justice of Appeal since 2008. He was called to the Bar
(Middle Temple) in 1972. He was co-author and general editor of Jackson and Powell on Professional
Negligence from 1982 to 1999. Since then he has been consultant editor. He was appointed a Queens
Counsel in 1987. He was appointed Recorder in 1990 and Deputy High Court Judge in 1993. He was
Chairman of the Professional Negligence Bar Association between 1993 and 1995. In 1999 he was
appointed as a High Court Judge in the Queens Bench Division. He was the Judge in Charge of the
Technology and Construction Court (TCC) between 2004 and 2007. In January 2009 he was asked by the
Master of the Rolls to undertake a comprehensive review of civil litigation costs. He produced a
Preliminary Report in May 2009, and the Final Report was published in January 2010. He is a member of
the Judicial Steering Group on implementation of the review. He has been an editor of the White Book
since 2000 and editor-in-chief since 2010. We are honoured to welcome him as our President.
When it came to choosing a recipient for this years Presidents Medal we had a unanimous decision from
Council and I am delighted to announce that the Medal was presented to Sir Anthony May in recognition
of the tremendous service he has given us over many years.

During October I attended the European Societies of Construction Law annual conference in Lige. This
was an excellently organised conference by the Belgian Society and looked at Subcontracting across
Europe. At the conference, the ESCL Master Thesis Prize was awarded. Eleven theses were submitted
from across Europe and I am delighted to announce that the First Prize was awarded to Patrick
Hehenberger for his thesis entitled UK success to be remade in Germany. Will adjudication collide with
the fundamental civil law principles and the second prize was awarded to Timothy Leone Ganado for his
thesis entitled Interface agreements in UK PFI Healthcare Projects. Both winners were studying at Kings
College London.
During October I also attended the second meeting of the new East Anglia Region at the new Hertfordshire
University School of Law. My thanks go out to Kathleen Kwan the Director of Legal Services and her
team for welcoming us to an exceptional building with a mock court room that rivals the new Rolls
Building. Sir Anthony May gave a talk entitled Set Back to Set-off which was extremely well received.
October also saw the second meeting for the newly formed Kent region and Sir Vivian Ramsey gave a talk
on Prevention, liquidated damages and time at large
I am also delighted that the Eire region is continuing from strength to strength and John Lydon attracted
40+ to attend a talk be Finoal Mcarthy entitled The interpretation of Contracts Common Law
Principles For those of you who have not yet booked please do look at attending the SCL Dublin
Christmas lunch being held at Croke Park on Friday 7th December. If it is anything like last year we can
expect another entertaining afternoon. Full details are available in the programme and on the website.
I also attended the SCL Scotland lunch on 5th October. This was another sell out event and my thanks go to
Louise Shiels and Lisa Cattanach for their organisation. They had invited George McNeill the ex
footballer, sprinter and Quantity Surveyor as their guest speaker who gave a very entertaining after dinner
talk.
The Southampton Region is also developing and they hope to hold future talks in new areas along the
South Coast as far away as Bournemouth in the future. They held a talk by James Cross and David Sears at
the Ageas Bowl during the month entitled Duties of Care in Construction after Linklaters v Sir Robert
McAlpine
Should any of you wish to be included in the distribution lists for future talks in any of our regions please
contact the regional coordinators. Their details are on the website, alternatively just book a place on the
website http://www.scl.org.uk/events
SCL council are in the process of reviewing our website and looking at how we can improve it for the
benefit of our membership. If any of you have any ideas on how we could improve the website please drop
Jill Ward an e mail on jillward@scl.org.uk
Finally this month I would like to return again to the SCL review of Expert Evidence. Attached to this
newsletter you will find a list of 65 questions on expert evidence. We would very much like your opinions
on these questions. You do not need to answer all questions but the more the better. You can respond
ideally be filling in the answers on line at http://www.scl.org.uk/experts/questionnaire or by emailing to
Frances Whitehead at franceswhitehead@scl.org.uk or post to Frances at 114 Pettits Lane Romford Essex
RM1 4EJ. Your help with this will be much appreciated.
Keith Kirkwood
Chairman
keithkirkwood@benningtongreen.co.uk

Adjudication Advocacy Course

The Society is pleased to announce that it will again be holding an Adjudication Advocacy Training
Course this autumn. Unlike in previous years, the course is open to all members of the Society who have
no, or no significant advocacy experience. This includes junior counsel and pupil barristers as well as
junior solicitors, together with construction professionals wishing to conduct their own advocacy in front

of other tribunals, such as mediation or adjudication (although preference will be given to legal
representatives).
The Course will give each advocate the opportunity to present and oppose interim applications in a range
of construction law scenarios, and the emphasis will be on hearings replicating business in adjudication.
The course is open only to SCL members. For further details, contact Hamish Lal at HLAL@jonesday.com

SCL Hudson Prize 2012 2000 First Prize

Entries are invited for the 2012 Competition from all entrants with an interest in construction law and an
idea which they wish to share. The judging panel places emphasis on originality of thought and approach.
The length of essay is a maximum of 5000 words. (While footnoting or other method of referencing
sources does not count towards this total and is encouraged, some recent entrants appear to have tried to
avoid the word limit by loading footnotes with matters of substance, sometimes running to several
paragraphs, in a disproportionate and inappropriate way. This is almost always counter-productive.
Eligible subjects can be drawn from any part of construction law widely defined, including (but not
restricted to) construction and engineering contracts, contract administration, claims, arbitration,
adjudication and dispute resolution, construction litigation, the law of torts, company law, property law,
taxation (although this must be related to construction) and any other aspect of law or procedure relevant
to the construction industry. First prize is 2,000 and Second prize is 1,000. Entrants can also be highly
commended or commended. The award of prizes or commendations, or the decision not to award them, is
in the absolute discretion of the Society through its judging panel. All who are awarded prizes or
commendations receive a year's free membership of the Society. The Society may decide, at its discretion,
to publish the successful papers, in hard copy and/or electronic format.
Past winners have included members of almost all the disciplines relating to construction law including
barristers (including a pupil), solicitors (including a trainee), quantity surveyors, engineers, academics,
architects, and several hybrids qualified in more than one discipline.
Further information and entry details can be found on the website www.scl.org.uk or obtained from
Jill Ward admin@scl.org.uk. The closing date for essay submission is Thursday 3rd January 2013. Any
queries can be referred to the panel via Jill Ward in the first instance
Good luck to all entrants.
Professor Anthony Lavers - Chairman of the Judging Panel

Members Benefit
We are pleased to announce CONSTRUCTION LAW, a brand new three-volume book by Julian Bailey,
designed to address the major issues arising out of construction and engineering projects. Construction
Law, as Lord Justice Jackson describes in his Foreword, is a "tour de force" that will "become a standard
work of reference for busy practitioners across England, Wales and Australia". Exclusive Offer: Save 20%
on Construction Law by Julian Bailey.
Apply promo code CARB to your shopping cart
http://www.informaprofessional.com/publications/books/construction_law
We are also pleased to announce Expanding the Horizons: On Active Service in Law and Education
By His Honour John Toulmin CMG QC with a Foreword by The Right Honourable Kenneth Clarke, MP,
Lord Chancellor and Secretary of State for Justice. In Expanding the Horizons: On Active Service in Law
and Education John Toulmin reflects on his varied contributions both nationally and internationally in
stimulating the development of the seven organisations in which he has been involved. He tells the story
through speeches and articles by him and in his honour and looks at future developments. To order at the
discount price of 20.00 email ann.vowles@wildy.com please give your name, full delivery address and
telephone number, quoting SCLmember4.12 in the email. Wildy, Simmonds & Hill will despatch the
book to you with an invoice.

FIDICs International Contract Users' Conference

20% saving for SCL UK members
5th & 6th December - London
Remain ahead of the field with exclusive, insider insights from the very people responsible for drafting and
updating the FIDIC contracts. Gain best practice guidance for the range of contracts - including
implications of the latest changes and amendments, how to avoid the pitfalls, to keep your costs down and
resolve disputes. For your 20% saving quote VIP code: FKW2328SCLUKE

SCL New Zealand

Following the highly successful Essay Prize Competition 2012 the Society opened the 2013 Essay Prize
Competition for 2013 on 26 September 2012. Entrants are to submit their proposed topics by 31 October
with the Society advising admittance by 30 November. The full essays are to be submitted by 30 April
2013. The winner and runner-up will be announced at the Societys AGM in July 2013. As with this years
winners, they are invited to present their papers at subsequent Society meetings in both Auckland and
Wellington.

Kuala Lumpur
KLRCA Adjudication Training Programme
The Adjudication Training Programme is conducted by KLRCA and is open to everyone, especially those
in the construction industry. Aside from training future adjudicators and provide them with the necessary
skills to conduct an adjudication, the programme is also suitable for those who do not want to become
adjudicators but would just like to seek more knowledge on the subject.
For further information, please contact Kuala Lumpur Regional Centre for Arbitration Tel: 03-2142 0103
Fax: 03-2142 4513 Email: cipatraining@klrca.org.my Website: www.klrca.org.my

Papers
First, The Costs Management Pilot Research Project, by Nicholas Gould and Christina Lockwood (D142)
(presented to the Centre of Construction Law 25th Anniversary Conference in June). Following on from
Lord Justice Jackson's Review of Civil Litigation Costs, the Costs Management Pilot Research Project
started in the TCC and Mercantile Courts in October 2011 and is scheduled to run until 31st March 2013.
It is being monitored by means of questionnaires and follow-up phone calls in order to evaluate how
effective costs management is in terms of controlling costs and keeping clients informed about the overall
costs position. This paper - written by two of those working on the project - considers how the pilot is
being received, and gives some statistics; it looks at the role of the judge in costs management; it considers
Form HB (the precedent the parties are required to use if they are subject to the pilot) and factors to take
into account when completing the form and responding to it; and it comments on the client's view of the
process. Form H, the new Precedent H (an amended version of the old form launched in May 2012) is
annexed.
Secondly, East Meets West: Delay Analysis - A View from Australia, by Robert Fenwick Elliott (D143)
(presented to the International Conference in London in September). Robert Fenwick Elliott explains that
the purpose of his paper is to make a few observations about how delay analysis is currently being treated
in Australia, looking in particular at Alstom v Yokogawa (No 7), a decision of the Supreme Court of South
Australia which - he comments - many construction lawyers will find somewhat remarkable. He first looks
at other recent Australian cases on claims for delay damages (loss and expense at a pre-agreed weekly
rate, in English terminology). He illustrates the Australian courts reliance on the SCL Protocol as
summarising proper methods of retrospective delay analysis, and goes on to show how in Alstom the court
adopted a broad interpretation of a duty to cooperate between contracting parties, as well as ideas of fair
dealing and good faith.

Thirdly, another arbitration related paper from the International Conference, Procedural Orders and
Preliminary Meetings in International Construction Arbitration by Richard Harding QC (D144).
Procedural orders are often not given the attention they deserve. It is essential that the procedure is
carefully though through at an early stage and appropriate directions given, the author - who has extensive
experience of arbitration in the Middle East, argues. He considers the steps that should be taken, including
practical recommendations.

New Members
Finally, we are pleased to welcome the new members who recently joined the Society:
Barry Gardner, Merseyside
Paul Singh, London
Gareth Davies, London
Kate Wood, London
Daniel Maguire, Romford
Tom Smith, Japan
Valmai Barclay, Dartford
Sophia Burton, London
Mathew Crump, Sheffield
Subhabrata Das, India
Felicity Dynes, London
Peter Barnes, Waltham Abbey
David Sadler, Germany
Ron Nobbs, London

Jonathan Kay Hoyle, Australia

Christopher Luxmoore, London
Nicola Ellis, London
Peter Mansfield, Bristol
Stuart G.C. Hill, London
Tom Marke, London
Karen Morean, Guildford
NM Raj, Poland
Rob Squires, Exeter
Paul Stevens, London
Paul McCusker, Co Down
Nicholas Boorer, Chingford
Steven Sharp, Stanford-le-Hope

Helen Pagett, London

Jill Hamilton, London
Darran Jenkins, London
Giles Tagg, Bristol
Tom Owen, London
Seb Oram, London
Johan Beyers, South Africa
Michelle Knight, London
C Ackermann, South Africa
Tim Atwood, London
Kimberly Roberts, Oxford
Mark Ian Wakefield, Lymington
Steven C Evans, Cardiff