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LEGAL UPDATE - CONSTRUCTION LAW At the Branch meeting, held on the 8th May 2007, Vincent Moran of Keating Chambers presented a legal update on cases having an impact on the construction industry. With a 14 page handout supporting the oral presentation by Vincent Moran; together with the discussion which followed, it is unlikely that anyone could fully replicate the evenings events in any realistic way in a report for News & Views. In simple terms, those who did not attend did not have the benefit of the meeting, those who did attend were well rewarded for their journey to Tonbridge. However, what I can do is to tell members what I personally came away with. The talk was based upon 7 themes related to the construction industry and also a 'hot off the press' section, with several cases noted under each. The themes were:-
Under each head, the speaker widened his notes with comments about comparisons between related judgments and he also made both general and specific comments on the various issues. These comments gave me a valuable insight into the current state of play in the litigation field. I was able to make quite a few notes for subsequent pondering and, in general, I was driven towards the concept that such legal updates continue to remind us of the need to be aware of the dynamic state of the law. For example, if I managed to grasp the point properly about one of the 'Hot off the press' cases, namely: Golden Strait Corporation v Nippon Yusen Kubishka Kaisha [2007] UKHL 12, the speaker noted that this was a useful case on how to deal with damages for breach of contract. On hearing that, I wondered about how many times I had heard that expression over the years. Anyway, as I understand it, this appeal to the House of Lords was dismissed by a majority of 3 to 2. Upon a subsequent look at the case, I noted that Lord Bingham of Cornhill was in the minority. He had stated that the maritime arbitrator who was the original decision-maker in the case would have preferred to accept the owners' contention, but felt constrained by first instance authority to accept the charterers'. Lord Bingham stated that the arbitrator's decision was upheld by the Commercial Court and by the Court of Appeal. Then Lord Bingham added that a majority of his noble and learned friends also agreed with that decision (i.e., to dismiss the appeal). He then said that he had the misfortune to differ (i.e., to allow the appeal). He had given his reasons for doing so and noted that his reasons were unauthoritative. However, he noted that in his respectful opinion the existing decision (i.e., the dismissal of the appeal) undermined the quality of certainty which is a traditional strength and major selling point of English commercial law, and that it involved an unfortunate departure from principle. Well, I thought to myself, as I noted the 80 or so paragraphs of opinions by their Lordships, this judgment certainly seems to lack the certainty of unanimous judgments which should flow flow out the highest court in the land. I decided to flag up the judgment for a read at some later date. Reflecting upon our speaker and the importance of such meetings, I came away believing that it was another reminder to all of us, who are busily getting on with our usual activities, that everyday in the courtrooms of the UK, the law is continually being reshaped by the hands [and the minds] of the judiciary and also the relatively few parties who care to test it. This reshaping of the law means that one can never actually learn the law. All one can do is to be aware of the constant need to discover the current state of play at the times of entering into new commitments and also at the times of trying to resolve issues which arise out of old commitments. Vincent Moran's talk to the Branch was a valuable contribution to the members in attendance and I trust that I have given some indication of it contents. I have, of course, avoided the temptation of trying to relay what the speaker actually said because, as they say, these meetings and subsequent reports are for the purpose of raising general awareness and encouraging discussion. There is no substitute for taking appropriate professional advice when faced with real issues and, I have no doubt, that a knock on the door of Keating Chambers would be rewarded with a cutting-edge update on the latest angle on the law. Report by Francis Miller A full copy of Vincent Moran's paper is available on request by email to Helena Brown (helena.brown@arbitrate.org.uk) and from the Branch's website (Main Menu - Meeting / Speakers papers) |
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