OUTLOOK: The Commercial, Construction and International Arbitration podcast

In this episode, Kelly Stricklin-Coutinho, barrister and mediator at 39 Essex Chambers and Chair of the Civil Mediation Council, and her guest, Amrik Kandola, commercial and construction mediator at CEDR, and ADR member of the Civil Justice Council, discuss some current themes in commercial and construction mediation.Click here to check out our Fixed Fee Mediation Scheme.

In this episode, 39 Essex Chambers' barristers Katie Scott and Eliza Sharron discuss why mediation has traditionally been under used in Court of Protection and public law disputes, and they examine the types of disputes which lend themselves to mediation within these fields.Katie and Eliza discuss the benefits of mediating such disputes, not only in relation to saving time and cost, but also in terms of preserving relationships in a context where parties often have to keep working together in the long term.Click here to check out our Fixed Fee Mediation Scheme.

John Pugh-Smith and Juan Lopez, specialist counsel and accredited mediators, take an introductory look at how mediation is beginning to be enthusiastically mobilised in the areas planning, compulsory purchase and compensation. Drawing from personal experiences they explain how mediation, as part of well-established case management, is now emerging as a necessary part of the practitioner’s toolkit and resolution techniques, so in providing an alternative solution or constructive contribution to disputes that are common within these practice areas, thereby reducing litigation risk. They  discuss how a carefully considered and dynamic approach taken to mediation can prove both positive and accessible in many and varying instances, and, in assuredly serving the commercial and other interests of promoters, landowners, infrastructure bodies, and objectors alike as well as assisting the regulating public bodies. Click here to check out our Fixed Fee Mediation Scheme.

In the first episode of our four-part mediation mini-series, 39 Essex Chambers Mediation Group barrister William Norris KC and Shaman Kapoor discuss the principles and practicalities of mediation in civil claims, particularly focusing on claims for personal injury, clinical negligence and product liability as well as contract and tort actions.Click here to check out our Fixed Fee Mediation Scheme.

In this episode of Construction and the Climate, Ruth and Camilla look back on the ten episodes in the series so far and draw out five key highlights for listeners.

In this episode Camilla ter Haar and Ruth Keating discuss greenwashing claims with Miles Lockwood. Miles is director of complaints and investigations at the Advertising Standards Authority (ASA). Miles joined the ASA in 2010 and is responsible for leading the complaints and investigations teams, dealing with over 30,000 complaints per year.This episode covers the ASA’s guidance on misleading environmental claims and what businesses should consider when making environmental claims, in particular when making claims in relation to carbon neutrality and net zero.

In this episode, Ruth Keating and Camilla ter Haar discuss greenwashing claims and how they relate to the construction sector. Camilla and Ruth discuss what can be done by the construction sector and those advising construction sector clients, on how to avoid greenwashing, without the need to greenhush.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Constructing for the Climate – The Road to Net Zero’ with Victoria Burrows.Victoria is Director of Advancing Net Zero, World Green Building Council’s pioneering, global programme to accelerate total decarbonisation of the built environment. Victoria has a background in the sustainable development industry, ranging from client side advisory services, green building rating tool consultancy, and an on-site Head of Sustainability for a major international contractor. She has also co-authored the book ‘A Whole System Approach to High-Performance Green Buildings’.This episode discusses the tools, programmes and ideas that are paving the way to net zero.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Contracting for the Climate – Sustainability and Responsibility’ with Tiong Teck Wee. Tiong Teck Wee is the Co-Head of the Sustainability & Responsible Business Practice and a Partner in the Commercial & Corporate Disputes Practice at The Wong Partnership in Singapore. His main areas of practice are in multijurisdictional, complex, high-value commercial and corporate disputes. Teck Wee has represented and acted for global private, public, and state-owned clients from various jurisdictions (such as Singapore, Malaysia, India, Japan, PRC and U.S.).This episode discusses environmental-related issues in Singapore and more generally in Asia.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Building for the Future – Climate Change and the Built Environment’ with Stephen Hodder MBE. Stephen is a former RIBA President and established the CIC Climate Change Committee. He is also the Chairman of Hodder + Partners. The practice that he founded (Hodder Associates) received the most important award in British Architecture for a single building, the inaugural Stirling Prize for Architecture for the Centenary Building, University of Salford. Given 80% of buildings for 2050 exist today, there is not only an enormous challenge to upgrade current building stock, but also the need to consider in the first instance the re-purposing of existing fabric rather than demolish. This episode focuses on the importance of design and construction to achieving net zero.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Building for the Future – Climate Change and Arbitration’ with Jessica Crow. Jessica is an independent arbitrator (Arbitra International) who specialises in Energy and Natural Resources, Climate Change and the Environment, General Commercial Disputes and Public International Law, based out of London and Washington DC. She has particular expertise in matters relating to the energy transition and the international climate change regime. This episode focusses on the trends in climate change and arbitration – with a particular focus on what these trends mean for our construction sector clients.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Building for the Future’ with Joana Setzer Assistant Professorial Research Fellow at the Grantham Research Institute on Climate Change and the Environment, at the London School of Economics and Political Science (LSE). This episode focusses on the trends in climate litigation and in particular what these trends mean for our construction sector clients.

In this episode Camilla ter Haar and Ruth Keating discuss ‘Contracting for the Climate’ with Becky Annison of the Chancery Lane Project. This episode discusses some of the Chancery Lane Project’s model clauses and tips for lawyers on how these clauses can be implemented in contracts. As discussed in the podcast – contracting for the climate is today’s issue, not tomorrow’s problem.

In the third and final part of this this three-part mini series Joe-han Ho, Ruth Keating and Philippe Kuhn discuss the implications of the Witness Evidence Working Group’s proposals and how they might, or might not, work in practice. This part also provides 10 must-know points on the proposed reforms.

In the second part of this three-part mini series, Joe-han Ho, Ruth Keating and Philippe Kuhn discuss the scope of the proposed reforms put forward by the Witness Evidence Working Group in draft Practice Direction 57AC and accompanying statement of best practice. Major reform proposals include: (i) Certificates of Compliance; (ii) listing of documents seen by the witness; and (iii) providing detailed descriptions of the process.

In the first part of this three-part mini series, Joe-han Ho, Ruth Keating and Philippe Kuhn, commercial barristers at 39 Essex Chambers, discuss the issues which have arisen in the preparation of trial witness statements which have led to the proposed reforms in draft Practice Direction 57AC. This episode sets the backdrop for the problems which have arisen in practice and which have built to the proposals put forward by the Witness Evidence Working Group.

In this episode John Denis-Smith, David Sawtell and Rebecca Drake consider the recent judgment of Mrs Justice Cockerill in Rochford v Kilhan. The judgment in this part 8 claim in the TCC held that under the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) the final date for payment must be a fixed period of time from the due date, and cannot be linked to the provision of invoices.

Even if summary judgment is granted, the insolvent company might find that a stay of execution is granted. This episode will explore the court’s jurisdiction to stay execution of the Judgment and the criteria it will apply.

Many of the recent cases involving insolvent companies have involved litigation funding. This episode will explore the issues of ATE insurance, champerty and litigation funding.

A number of TCC decisions have set out conditions that the insolvent company will have to meet before it summary judgment is granted for enforcement, such as ring-fencing the adjudicated sum. This episode looks at what the TCC will expect to see.

This episode explains what insolvency set-off is, and why it causes problems when it comes to enforcing adjudication decisions.

In John Doyle Construction Limited (in liquidation) v. Erith Contractors Limited [2020] EWHC 2451 (TCC), Fraser J explained the principles to be applied and the procedure to be adopted. This episode looks at what the TCC decided.

In this episode, Neil Block QC discusses causation of loss in business interruption claims related to COVID - 19 following FCA v Arch Insurance and others. 

Jonathan Bellamy’s episode deals with the topical question of prevention of access insurance cover in business interruption policies in the light of the current Covid-19 pandemic and the recent court decision in FCA v Arch & ors.

In this episode, Paul Darling QC analyses the circumstances in which the Court will award indemnity costs. What if the case was very weak? What if the claim failed when there was a Defendant’s Part 36 offer? Will the Court of Appeal interfere with a first instance Judge? 

In this episode Marion Smith QC looks at recent case law dealing with third party costs orders. She considers how the court ensures that a liability for costs is shared fairly as between the losing party and (1) an expert and (2) a third party funder. 

What were the early experiences from the Pilot? What has amounted to “good reason” in notable cases? How will the Court deal with phases if it finds there is a good reason to depart?  Shaman Kapoor covers the ground in this episode.

In this episode, Judith talks about the problems in costs management caused by the divide between incurred and budgeted costs, and the recent changes to PD3E.  She also talks about budget revision and yet more changes to come to budgeting, with a whole new procedure for revision.

Peter Hurst, former Senior Costs Judge, with an introduction to the four episodes in the ‘Current Topics in Commercial and Construction Costs’ mini-series.