Index

Page numbers in bold refer to definitions

adjudication 20, 74, 77–81, 102–5

ADR (alternative dispute resolution) 70

after the event insurance 95

agreement 26–33

client’s right to cancel 36–7

shared liability 33–6

subconsultancy 49

see also appointment agreement; ‘back to back agreements’; conditional fee agreement; settlement agreement; written agreement

Alex Smolen v Solon Cooperative Housing 109

appointment agreement 13–14

ARB Code of Conduct 2, 58, 113

arbitral tribunals 86, 87

arbitration 19, 74, 84–9, 106, 122

Arbitration Act 1996 85, 86–7, 88, 106, 122

awards 86

‘back to back agreements’ 19, 49, 122

balance of probabilities 74, 122

bargaining, negotiation 61

barristers 101, 122

Blackstone’s Civil Practice 108

Bolam v Friern Hospital 11

Bolitho v City and Hackney Health Authority 11–12

breach of contract 3, 8, 10, 122

breach of duties 23–4, 25

see also risk minimisation

Burgess v Lejonvarn 5–8

cancellation rights, client 36–7

case law 88, 122

case management 86, 122

case management conference 90, 123

case studies

contractual disputes 27–30

design responsibility 39–40, 43–4, 46–7

duties 14, 16–17, 18

inequality of arms 69

CDP 38, 41, 42, 44, 125

CDP Analysis 45

CIArb (Chartered Institute of Arbitrators) 123

civil code 123

civil code jurisdiction 87, 123

civil court system 91–2

Civil Procedure: the White Book 108

claims consultants 104, 123

client

complaints procedure 59

contractual relations 13–14, 31–2

minimising risks with 26–37

right to cancel 36–7

codes of conduct 2, 55–6, 58, 113

collateral warrantees 20

common law 123

common law jurisdiction 87, 124

complaints procedure 58–60

conditional fee agreement 95, 124

conflict of interest 17

consensual settlement 50–72, 74

complaints procedure 58–60

expert evaluation 64–5, 105–6, 126

informal discussion 52–7

mediation 66–72, 128

negotiation 61–3

consent order 66, 124

Construction Act 1996 77, 124

construction law 80, 124

construction lawyer 124

consultant transfer 124

see also claims consultants; subconsultants

consumer 36–7, 124

Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 36–7

contract

breach of 3, 8, 10, 122

obligations in 5–8

privity of 15, 130

selecting form of 45

contract administrator 17, 125

contractor, risk, and design relations 38–47

contractor’s design portion 38, 41, 42, 44, 125

Contracts (Rights of Third Parties) Act 1999 20

contractual disputes (case study) 27–30

contractual duties 3–4, 9–11, 13–23

contractual relationships 12–23, 31–2

contributory negligence 10, 125

costs 125

adjudication 77, 78 arbitration 87 consensual settlement 53, 54–5 expert determination 82 litigation 93, 94–7

costs follow the event 125

counsel 101, 104

County Court 92, 125

Court of Appeal 92, 125

court cases

contractors and subcontractors 41–3 duties 4–10, 21

informal consensual settlement 53

liability 34–6

litigation 109

court hierarchy 91–2

CPR (Civil Procedure Rules) 87, 90, 94, 107, 123

Crown Court 126

damages 23, 126

defence 71, 126

design and build 126

design liability 41–7

detail design responsibility 39–47

case studies 39–40, 43–4, 46–7

dispute causes 2

Donoghue v Stephenson 4–5

duty of care 1–24, 126

breach of 23–4, 25

case studies 14, 16–17, 18

causes of dispute 2

contractual duties 3–4, 9–11, 13–23

contractual relationships 12–23, 31–2

duties in tort 4–5, 11–12, 21

standard of care 10–12, 132

employer

contractual relations 13–14, 31–2

minimising risks with 26–37, 48

evidence 75

expert 17, 100, 127

expert determination 74, 82–4, 105–6, 126

expert evaluation 64–5, 105–6, 126

expert evidence 17, 100, 127

expert witness 54, 101–2, 105, 127

exploration, negotiation 61

‘fitness for purpose’ 10–12

High Court 92, 127

Hurley Palmer Flatt v Barclays Bank 20

inequality of arms 68, 69, 127

informal discussion 52–7

inquisitorial 127

insurance 120

after the event 95

PI 33, 49, 109–10, 120

international disputes 87, 88, 93

JCT SBC 11 45

joint and several liability 33–4, 127

judge 74, 128

Law Reform (Contributory Negligence) Act 1945 8

legal services 119

legislation, resources 112–13

letter of claim 27, 128

liability limitation 33–4

limitation 128

litigants in person 107

litigation 74, 90–6, 107–11, 128

litigation risk 76, 128

Magistrates’ Court 128

mediation 66–72, 98–102, 117, 128

see also third party determination

mission creep 28–30, 33

Money Claims Court 92

Money Claims Online 129

NCC (net contribution clause) 33–6

negligence 3, 80, 129

negotiation 61–3

New York Convention 129

novation 15, 129

obligations, in contract and tort 5–8

Part 36 offer 129

PI insurance 33, 49, 109–10, 120

position statement 129

practice directions 107–8, 129

pre-action protocol 71, 90, 130

precedent 88, 130

privilege 130

privity of contract 15, 130

professional

adjudication 104–5 arbitration 109–11 expert evaluation and determination 106 mediation 99–102 resources 118

project manager 45, 130

protocols and rules 71, 75

see also CPR; pre-action protocol

Pyrrhic victory 130

QC (Queen’s Counsel) 130

‘reasonable skill and care’ 10–12

regulations, resources 112–13

remedy 131

representation 97–111

adjudication 102–5

arbitration 106

expert evaluation and determination 105–6

litigation 107–11

mediation 98–102

resolution see consent; dispute resolution; third party determination

RIBA 131

RIBA Code of Conduct 55–6, 58, 113

RICS 131

right to cancel 36–7

risk minimisation 25–49

client 26–37

contractors 38–47

subconsultants 48–9

Robinson v P.E. Jones 3

rules see CPR; pre-action protocol; protocols

settlement 61, 131

see also consensual settlement

settlement agreement 66, 131

site inspections 31–2

Smith v Eric S. Bush 21

solicitor 100–1, 104, 131

solo representation

adjudication 103

expert evaluation and determination 105–6

litigation 107–9

mediation 98–9

specialist design 131

specialist subcontractor 41, 43–4, 131

specific performance 24, 132

standard of care 10–12, 132

standard of proof 74, 132

standard of work 45–7

Stanley v Rawlinson 53, 94

statement of claim 71, 132

subconsultants 18–19, 48–9

subcontractor see contractor; specialist subcontractor

subrogation 22, 132

Supreme Court 92, 132

TCC 132

third party determination 51, 73–96

adjudication 74, 77–81

arbitration 19, 74, 84–9, 122

expert determination 74, 82–4, 126

litigation 74, 90–6, 128

see also mediation

third party neutral 68, 133

third party rights 20, 133

time costs see costs

Tomlin order 66, 133

tort 133

duty of care in 4–5, 11–12, 21

obligations in 5–8

Trebor Bassett & Anor v ADT Fire and Security 8–10

tribunals 74, 86, 87

UCTA 34

UTCC 34

value engineering 133

Walter Lilly v Mackay 41–3

West v Ian Finlay & Associates 34–6

without prejudice 67, 133

witness of fact 102, 105, 133

written agreement 30, 33