Blazing a trail(er)
During the recent very hot weather I took my family to the cinema, not just to be entertained by one of the summer blockbusters (note: the new Lion King is not as good as the original) but mainly to cool down. Hats off to the HVAC installers and engineers at my local cinema.
The trailers for new films got me thinking about how the film industry builds anticipation for its upcoming releases. A number of the films advertised won’t be released for many months, but the trailers got the family talking about them and (in some cases) looking forward to them.
By contrast, there is very rarely any build-up to or anticipation of discussion-worthy construction law cases. The first time we hear about such a case (unless we are involved) is when we read the judgment, or an article or blog discussing it. The exceptions are the very few construction cases that are the subject of appeals.
One such case was S&T (UK) Limited v Grove Developments Limited, the Court of Appeal decision which was widely anticipated given its importance to the industry. The Court of Appeal was to decide three issues including whether (as Coulson J, as he then was, decided in the TCC) a party ordered to pay up following a “smash and grab” adjudication brought following a failure to provide the required notices could start a second adjudication to determine the “true value” of the sum due.
" Very few construction cases come to the Supreme Court, the highest court in the land. Only one previous case on the Construction Act has been heard by the Supreme Court (or its predecessor the House of Lords). "
With spectacularly bad timing, I gave a talk on S&T v Grove to the CIOB the evening before Jackson LJ handed down the judgment of the Court of Appeal and had to hedge my bets on the outcome. What I was able to be certain about was that further clarity was required of the circumstances in which a “true value” adjudication, if permitted, could be commenced.
The Court of Appeal confirmed the TCC decision and clarified that a “true value” adjudication could only be commenced once the sum awarded in the “smash and grab” adjudication had been paid. The Court of Appeal decision was reported widely, including in our blog.
The Supreme Court has just released a trailer for the sequel; it has recently given permission to S&T to appeal against the Court of Appeal’s decision. It would appear that permission has been given on all three issues (the content of pay less notices, liquidated damages notices under the JCT form of contract and the “true value” adjudication issue).
Very few construction cases come to the Supreme Court, the highest court in the land. Only one previous case on the Construction Act has been heard by the Supreme Court (or its predecessor the House of Lords): Melville Dundas Limited v George Wimpey UK Limited and Others dealt with payments following insolvency. Judgments from the Supreme Court are final and of considerable importance, and S&T v Grove is an important case for the industry.
It will therefore be very interesting to watch (Supreme Court proceedings are shown live on the internet) how the Supreme Court deals with the question of entitlement to commence a “true value” adjudication, which construction law practitioners and senior judges have grappled with since the amendments to the Construction Act came into force in October 2011.
Having seen the trailer, we are not yet certain when the blockbuster will be released, but anticipation is building as we may shortly have a final position on this important issue. We will update this blog when the Supreme Court provides a date for the hearing and, of course, when the Supreme Court gives its judgment.