webinar september - welcome to barton legal€¦ · part 1 –payment under jct and nec bill barton...

Webinar September

Payments: Contracts and Cases

With Guest Speakers

Adrian Cole - King & Spalding

Nicholas Dennys QC - Atkin Chambers

Bill Barton - Barton Legal


With Guest Speakers

Part 1 – Payment Under JCT and NEC - Bill Barton - Barton Legal

Part 2 – Disputes Under FIDIC - Adrian Cole - King & Spalding

Part 3 – Life of a payment claim - Nicholas Dennys QC - Atkin Chambers

• He has particular expertise in drafting and negotiating specialist bespoke contracts whether in relation to wind farms, renewable energy such as biomass, office and industrial developments, colleges or standard construction projects. As a result, he is experienced in drafting amendments to and negotiating not only standard forms of contract such as JCT, NEC and ICE, but also the FIDIC Red and Silver books as well as IChemE Burgundy, Red and Yellow books.

Part 1 – Payment Under JCT and NEC

Bill Barton – Barton Legal

Speaker 1

Construction Director

Bill Barton, [email protected]

Payment Applications and Notices - JCT



Payment Applications and Notices - NEC



Pay Less Notices



Joe Bloggs

ABC Limited

ABC Road

Dear Joe,

PROJECT: Development of hospital

We give this notice on behalf of xx

The Payer Consider [s] that the sum that is due on the date this notice is

served is £2,300.00. The amount you have submitted is not correct.

The Payer understands the final date for payment of that sum is.

Yours faithfully

XYZ limited

• How many mistakes can you

spot in this pay less notice? 1,

2, 3 or more – put your

answer in the chat box

Final Payment



JCT DB 2016

Clause 4.24 and in particular sub

clause 4.24.5 has trigger dates,

which in turn are subject to 3

options.

Then consider how clause 4.24.6

works and the danger of the

amount in the Final Statement

becoming conclusive by default.

Finally, the time limit for challenge

in clause 1.8 of 28 days

Failing to pay - Consequences



Construction is not intended to be warfare! Whilst NEC may not include

clauses that define or act as enforcement procedures or provisions, the

contract does include at 10.2 that the Parties shall act in the spirit of

mutual trust and co-operation.

That is a good starting point for every contract

Similarities and Differences



VS

Case Law



• Rochford Construction Limited v Kilhan Construction Limited [2020] EWHC 941

• J&B Hopkins Ltd v Trant Engineering Ltd [2020] EWHC 1305 (TCC)

• S&T (UK) Ltd v Grove Developments Ltd [2018] EWCA Civ 2448

• Broseley London Ltd v Prime Asset Management Ltd (Trustee of the Mashel Family Trust)

[2020] EWHC 944 (TCC)

• Surrey and Sussex Healthcare NHS Trust v Logan Construction (South East) [2017] 17

EWHC (TCC)

• Adam Architecture Ltd v Halsbury Homes Ltd [2017] EWCA Civ 1735

• Hutton Construction Ltd v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC)

Top Tips



NEC

Always employ an experienced Service Manager or project manager

Generally

Agree a schedule of payments with all relevant information and spaces

to add actual amounts

Pay Less

Agree a form in advance

Notice

Agree who notice is to be sent to and the address

Suspension for non payment

Serve a compliant notice

Beware of repudiation


With Guest Speakers




• “top 25 construction lawyer in the World” – Whos Who Legal

• Ranked Tier One by Chambers Global and Legal 500

• “He's the kind of guy you want with you rather than against you." (Chambers Global)

• International arbitrator, mediator and DAB member

Part 2 – Disputes Under FIDIC


Speaker 2

Partner, International Arbitration

[email protected] +971 2 5967013

mailto:[email protected]

Introduction

• FIDIC Red Book (not HGCRA)

• Life of a Payment Claim

• Interim / Final Payment

• Arbitration

• Part 1 up to CMC

There must be

“cashflow” in the

building trade. It is the

very life blood of the

enterprise”

Lord Denning MR

Dawnays Ltd v FG Minter [1971] 2 All ER

1389



LUMP SUM

BILL OF QUANTITIES

SCHEDULE OF RATES &

TARGET COST

COST + % FEE

CONTRACTOR’S PRICE RISK

DE

SIG

N D

EV

EL

OP

ME

NT

Contingency

Contract Price: Structures



• Contract Price Amount and timing of payments

• FPLS; Measured (12.1); Target; Cost plus; etc

• Adjustments: Variations (13.1); VE (13.2); Currencies (13.4); Prov Sums (13.5); Legislation (13.7) Fluctuations (13.8); tax and duties; MonS (14.5)

• Valuation of variations / dayworks (13.6)

• Engineer’s evaluation and determination (12.3)

GCC 14: Contract Price: Complexity



Payment Time



• Contractual Hygiene: Certainty

• MOUs / LOI

• Incorporation of correspondence

• Attribution of last minute discounts

• Employer’s Financial Arrangements / external constraints

• Information and records

• Engineer’s discretion and interim and final statements

• Rate build ups: evidence (40-60N concrete / change from tiling to marble)

Tips to maximise payment recovery



• 20.1 Contractor’s claims: notices

• Particulars / sufficiency

• 3.5 Engineer’s Determination

• 20.2 Appt of DAB

• 20.5 Amicable Settlement

• 20.6 Arbitration

• Expertise of tribunal



Disputes

• Contractual / Financial hygiene

• Diligent administration

• 3Rs

• Compliance: Both parties!

• Reduce or narrow scope of dispute

• Specialist tribunal

• Prepare and win!

“Pressure on the

cartoid artery can

render a person

unconscious in less

than 10 seconds;

withholding payment

has similar effect…”

John Barber, Building 1999,

Issue 22

Conclusion




With Guest Speakers




• Nicholas is a leading specialist in construction, civil engineering, international arbitration, professional negligence and information technology together with related areas such as insurance, sale of goods, insolvency, transport and energy.

• He has been involved in disputes involving foreign law including in India, Hong Kong, Singapore, UAE, USA (including New York, Texas, California), Europe (including Spain and Poland), South Africa and Gibraltar.

Part 3 – Life of a payment claim


Speaker 3

QC, Barrister

[email protected]

mailto:[email protected]

Major international projects give rise to the following types of claim



Pitfalls in presenting payment claims



Effective presentation of payment claims



Thank You

The material for this webinar has been prepared solely for the benefit of

delegates. It is designed only to be an integral part of the presentation and

does not stand on its own. It must not be used for giving advice in any shape

or form, and it is not a substitute for legal advice.

The author does not accept responsibility for loss howsoever occasioned to

any person or persons acting or refraining from action as a result of this

material.

NEXT WEBINARSubject: Termination

‘The Trials and Tribulations of Termination’

Date: Thursday 22 October at 11am

OTHER KEY DATES

26 November 2020 – FIDIC

16 December 2020 – Construction Xmas Quiz

January 2020 – 2020/2021 Review and Forecast with Special Guests

Thank You

webinar september - welcome to barton legal€¦ · part 1 –payment under jct and nec bill barton...

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