Stuart Thwaites’ Case notes
Aspect Contracts (Asbestos) v Higgins Construction Remember the following in your
negotiations: ● Openness is important. ● Commercial realism must recognise the
cost of failure to both parties ● Many candidates do not seriously consider the wider implications of a move
until they receive an offer. ● The value/security candidates have has to be offset against the risk/reward
of a new organisation. ● Candidates need convincing that risks will be offset by rewards in the future,
not immediately. ● Some candidates build unrealistic expectations when it comes to salary,
bonus and elements of a package. ● Signing on bonuses, guaranteed compensation levels and high bonus
levels reduce risk for the candidate. ● It is not a buyer’s market for a top
candidate and employer must be confi dent that the move is right for them. So what factors with a divisive impact on the hiring process do you need to address to ensure your preferred candidate signs on the dotted line? The recession has made both employees and employers more risk aware, which can mean they are further apart in negotiations. The candidate may have more to lose by moving than the employer in hiring them. It is vital that the benefi ts of changing job, with its associated risks, outweigh the safety of staying put. Candidates often used to move for a
more interesting role, but now a better package is equally important. When making an offer, be prepared to negotiate, be fl exible and see both sides.
quality hire. ● Many organisations have developed effective retention strategies for valued
employees. ● Sell your organisation’s future growth plans.
While direct negotiations do succeed, in these diffi cult times it does pay dividends to use a dispassionate intermediary. Your search consultant should reconcile the two parties and be able to conclude a deal while leaving relationships between employer and candidate in a good place for the future and the employee feeling excited about their future.
Viv Packer is a partner in The Packer Partnership.
www.thepackerpartnership.com
When a contract is not executed as a deed, a party has six years in which to bring its claim from when the right (or “cause”) of action arose. After that time the defendant has a complete defence to the claim, simply because it has started too late. Such a timing issue arose
this year in the case of Aspect Contracts (Asbestos) v Higgins Construction. Aspect specialises in asbestos management services, including asbestos surveys. Higgins is a construction company specialising in refurbishment of community housing, education and healthcare properties. In March 2004, Higgins was
considering whether to enter into a contract with Notting Hill Housing Trust for the demolition and redevelopment of the Ivybridge Estate in Hounslow, London. Before making a decision, Higgins approached Aspect to carry out an asbestos survey. After receiving the survey, Higgins undertook the demolition and redevelopment of the Ivybridge Estate. During the course of the works additional asbestos, not shown on Aspect’s survey, had to be removed, which delayed the project. Higgins also had to pay for the additional asbestos to be removed and blamed Aspect for the resulting delay and, of course, its increased costs.
Higgins began adjudication proceedings against Aspect in
Stuart Thwaites’ analysis
Aspect lost out on the chance to try to get its money back because it began court proceedings too late. It may or may not have been the subject of a wrongly decided adjudication — we’ll never know. Such timing issues do not
to other contributors and end users of the model (such as the developer, tenant, purchaser). As the model shows the results of patented processes and designs as well as “knowing” the building codes, algorithms and applicable engineering principles, confi dential information is more open than before. Mutual confi dentiality and non- disclosure clauses should be used to deal with and compensate for possible misuse or re-use of a contributor’s
input, or the inadvertent sharing of proprietary information, manufacturing process data or patented processes. The Construction Industry Council has
recently published a suggested form of BIM protocol which provides for a copyright licence but is narrow in scope and does not address the issue of copyright subsisting in the BIM model itself, nor the issue of confi dentiality, both of which remain to be dealt with. By Assad Maqbool, a partner in the projects and construction team at Trowers & Hamlins
usually arise because adjudications tend to be started fairly promptly when a dispute arises. If the dispute is over money, there is normally a strong incentive to adjudicate if negotiations do not result in payment. If a party is then not happy with the adjudicator’s decision, again proceedings are started fairly promptly as the losing party wants to get its money back as soon as possible. But where time does become
an issue, there are three practical and important points to be taken from this case,
which now represents the new law on this issue. First, do not delay in bringing proceedings if you are unhappy with the outcome of an adjudication, at least not until you are sure as to how much time you have to bring those proceedings. Second, be aware that the
starting point for that limitation period is not when you pay out following an adjudicator’s decision but from the date of the underlying (alleged) breach of contract. Third, if an adjudication is
started against you close to expiry of the limitation period (six years if the contract is not executed as a deed), take advice on starting protective court proceedings. Keeping these points in mind
will avoid the very costly mistake that Aspect made.
Stuart Thwaites is senior associate Wright Hassall Tel: 01926 884690
www.wrighthassall.co.uk/
CONSTRUCTION MANAGER | OCTOBER 2013 | 31
2009 and was successful: Aspect paid Higgins £658,017 pursuant to the adjudicator’s award. So far, so normal, save that Higgins started the adjudication so late. Two-and-a-half years after the
adjudicator’s decision, in February 2012, Aspect decided to bring proceedings against Higgins to get its money back. Aspect sought a declaration
that it was not liable to pay damages and/or interest to Higgins in the amount decided by the adjudicator, or at all. Further, it sought an order for repayment of the monies it had paid to Higgins. Higgins brought a counterclaim for the balance of its loss that it had not previously recovered. The key preliminary issue in the
court proceedings was whether Aspect’s claim (and Higgins’ counterclaim) was time barred. Aspect contended that there was an implied term of the contract that when it paid the money to Higgins, following the adjudication in 2009, it gave rise to a new right or cause of action against Higgins, and as a result its claim was not out of time. The judge held that there was no implied term of the contract. As a result, the “cause of action”, that is, the issue giving rise to the claim, was not the payment to Higgins following the adjudication in 2009, but the breach of contract alleged by Higgins against Aspect in 2004/5. Aspect’s claim (and Higgins’ counterclaim) was out of time.
Photograph: © ZUMA Press, Inc. / Alamy
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