Resolving UK construction disputes – our round-up of practice and procedure for in-house lawyers

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Our Resolving Construction Disputes Briefing highlights litigation, international dispute resolution and alternative dispute resolution (ADR) developments and is aimed at in-house lawyers in the construction industry.

Litigation procedure update (construction focus)

Changes to the CPR

  • The 83rd update of the Civil Procedure Rules (CPR) came into force on 6 April 2016 and includes revisions to the costs management rules (CPR 3, section II). Only the first page of Precedent H will now need to be exchanged and filed for claims valued under £50,000 (or where the costs are under £25,000). In addition, parties must now serve the costs budget 21 days before the case management conference (CMC) (except for lower value claims, where the budget must now be filed with the Directions Questionnaire); and agreed "budget discussion reports" (a new "Precedent R") must be served seven days before the CMC.

Practice Direction 3E has been updated accordingly and the changes will only apply to those proceedings started after 6 April 2016. The reasoning behind the changes is to give parties an extra tool (in the form of Precedent R) and more time for discussion, negotiation and agreement on their budgets before going to the court hearing. In turn, this should reduce the amount of court time needed to resolve budget issues. Given the extra time, parties should expect to be given short shrift by courts if they ignore opportunities for agreement.

The new bill of costs

  • In his Review on Civil Litigation Costs: Final Report, published long ago in 2010, Jackson LJ suggested that a new bill of costs should be created because the current format can be expensive and difficult to prepare, is not easy to digest and does not make enough use of available technology. Work has since been done on creating the J-Codes: a set of universal time-recording codes for litigation cases in England and Wales as well as a new bill of costs format for detailed assessment. A pilot of the new bill of costs was launched in October 2015 under Practice Direction 51L (PD51L) but controversy followed when it was announced the bill would become mandatory in April 2016. Jackson LJ summarised the position in his keynote address to the Law Society’s Civil Litigation Conference on 21 April 2016 and suggested some ways to break the deadlock. In the meantime, the PD51L pilot scheme for a new bill of costs has been extended to 30 September 2016. The extra time should allow further opportunity for the Hutton Committee (charged with developing the new bill of costs) to consider the effects of its compulsory introduction.

As part of the process, the Law Society launched a survey to learn more about how members record their time and discover which members are already using J-Codes to time-record and to gauge opinion on the new format bill of costs and the voluntary pilot scheme under PD51L. The survey closed on 3 June 2016.

Costs management: beware the effect of agreeing estimated and incurred costs

  • While on the topic of costs, a recent Court of Appeal decision on costs budgeting came as something of a surprise to litigators. In SARPD Oil International Ltd v. Addax Energy SA and another [2016] EWCA Civ 120, the court held there was "little if any difference between the practical effect of the court's order in relation to incurred costs and its order in relation to estimated costs" (paragraph 47 of the judgment). While paragraph 7.4 of Practice Direction 3E provides that the court may not approve costs incurred before the date of any budget, in practice a court's indication that the incurred costs are reasonable and proportionate will mean that parties at assessment hearings will need strong grounds to persuade the court to allow a different sum.

The court also found that parties agreeing a costs budget that is recorded in a costs management order will be taken to have agreed both incurred costs and estimated costs (unless they have specifically stated otherwise). Parties should therefore be aware that their agreement to a costs budget includes agreement on the already incurred as well as the estimated costs. In addition, if costs budgets are not agreed, parties should attend the first costs hearing prepared to contest both the incurred costs and the estimated costs. To do otherwise risks the court indicating the incurred costs are reasonable – thus making it very difficult to argue against the court's view on assessment. For those interested in the detail, paragraphs 41 to 44 of the judgment are worth a read.

Use of inappropriate litigation tactics in security for costs applications

  • The SARPD decision (above) arose out of an application for security for costs and the court's decision on the security issue is also worth noting.

Addax had applied to court for an order that SARPD give a substantial sum by way of security for its costs of the proceedings on the basis that SARPD was a company and "there is reason to believe that it will be unable to pay [Addax]'s costs if ordered to do so". (See CPR 25.13(2)(c).) The judge at first instance found there was no reason to believe SARPD would not be able to pay the costs and declined to order security for costs. In doing so, he refused to follow what has arguably become the normal commercial court practice of awarding security where a foreign company has not (as here) filed publicly available accounts, has no discernible assets and has declined to reveal its financial position.

However, the judge gave leave to appeal on the point because he suspected SARPD was being reticent "about its financial position [because] it would benefit in settlement negotiations from Addax's doubt about whether it would recover its costs even if it defeated the claim".

On appeal, the court held that it was unacceptable "for SARPD to give Addax reason to believe it will be unable to recover its costs but at the same time assert that there is no reason for the court so to believe" for the purposes of the security application (paragraph 17 of the judgment).

SARPD's argument that it was keeping its financial position confidential for business reasons did not withstand court scrutiny either: the court pointed out that SARPD could have asked the court to sit in private or to avoid referring in public to relevant financial amounts. Where a company is given the chance to prove its ability to pay – but does not – there is every reason to believe it will not be able to do so.

New research on the Construction & Engineering Pre-Action Protocol (PAP)

  • The Pre-Action Protocol for Construction & Engineering Disputes (PAP) sets out a procedure for parties in construction and engineering disputes to follow before proceedings are started. The aim is to encourage the exchange of information and to promote settlement. The Technology and Construction Solicitors' Association (TeCSA) has undertaken research into the perceptions of the PAP and conducted a survey in conjunction with Acuigen on the PAP. The consequent report evaluates the PAP's perceived value. TeCSA's review of the report can be accessed here. In summary, overall: "95% of respondents thought that the PAP was a valuable pre-action mechanism and 87% believe that it is creating access to justice. 49% of respondents suggested amendments to make the PAP more effective."

TeCSA has concluded that "there should be no doubt that the PAP ought to remain and that it should continue to be a compulsory step for those wishing to pursue a claim through the courts". These results underline the fact that the PAP is overwhelmingly valued by those directly involved in disputes in the engineering and construction sector.

Court Reform

  • The Civil Justice Council (the CJC) has set up a new Civil Litigation Review Working Group to consider and review a series of discrete topics relating to civil litigation. Particular issues it will consider relate to the funding of claims and of furthering the Civil Procedure Rules' overriding objective of enabling the court to deal with cases justly and at proportionate cost.

One of the first topics up for review by the new CJC working group will be the "hot-tubbing" of experts. This is the process by which experts of similar disciplines can be called on to give their evidence concurrently (see Practice Direction 35, paragraph 11.1.) A CJC survey into hot-tubbing closed on 7 June 2016. The working group will also consider how before the event insurance (BTE) might help in improving access to justice.

  • The Civil Justice Council (CJC) has responded to Lord Justice Briggs's interim review of the civil courts structure, which deals with issues such as the number of courts and judges, online dispute resolution (ODR), rights and routes of appeal and enforcement. The CJC has, generally speaking, welcomed the recommendations for an online court and provided comments on some of the practical and procedural issues involved. A copy of the CJC response can be found here.
  • Lord Thomas, the Lord Chief Justice (LCJ) has called for arbitration and the courts to work better together and for their relationship to be rebalanced. He is keen to ensure that the right dispute resolution methods are in place to develop the law – by way of legal precedents – that underpinned the markets, trade and commerce and to maintain the strength, vitality and agility of that law. (See: "Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration", the 4th Bailii Lecture 2016, 9 March 2016.)
  • On 3 March 2016, the Senior President of Tribunals, the Right Honourable Sir Ernest Ryder, delivered the 5th Annual Ryder Lecture: "The Modernisation of Access to Justice in Times of Austerity". He discussed the following key elements of his vision: "Our vision is of one system of justice, supporting the needs of all our diverse users, without consigning any to a second class service; one judiciary, with specialist expertise, deployable across jurisdictions, flexibly and responsively, as caseloads require – supporting service delivery as well as career progression; and better quality outcomes, facilitated through innovative problem solving and inquisitorial dispute resolution, supported by modern infrastructure, and backed by performance monitoring and appraisal."

Court statistics

  • Civil court statistics for October to December 2015 have been published by the Ministry of Justice. In that time, the courts dealt with around 390,000 claims, similar to the number of claims dealt with in the same quarter in 2014 but, from a longer-term perspective, the figures show a decrease of 3%. (Click here for the MOJ source.)

Shorter and flexible trials

Click here to access Practical Law's In-house lawyer blog (free access): Can we fight this? Yes you can: quicker, cheaper business litigation. Contact Gurbinder Grewal if you want further information.

Being reasonable when claiming damages

The Court of Appeal has provided a sensible reminder of the compensatory principle in its decision in Fulton Shipping Inc. of Panama v. Globalia Business Travel SAU (formerly Travelplan SAU) [2015] EWCA Civ 1299. English law's aim in awarding damages for breach of contract is to make a monetary award that puts the claimant in the same position as if the contract had been performed – in so far as that is reasonable. In the Fulton case, the court decided that certain action taken by the claimant had mitigated its loss and the value of the mitigation should be taken into account to reduce the total amount of damages recoverable. The court emphasised that the claimant is only entitled to recover its true loss. Claimants in general should bear this in mind when preparing their claims.

E-Disclosure: to use or not use computer assisted reviews?

There have now been two High Court decisions approving the use of predictive coding in electronic disclosure exercises. Predictive coding (also known as technology or computer assisted review) is a form of technology used in litigation to find documents relevant to the issues in dispute. It enables the document review element of the disclosure exercise to be carried out by computer software (rather than humans) that sifts through large volumes of electronic documents such as emails, Word documents and other forms of electronically stored information (ETI) such as meta data (data about data).

The process relies on senior lawyers who know the case reviewing a sample set of documents and allocating codes. Those codes are then processed through software and applied to the rest of the documents to predict their relevance.

In the case of Pyrrho Investments Limited and another v. MWB Property Limited and others [2016] EWHC 256 (Ch) (reported by Westlaw), 17 million documents had been reduced to just over 3 million by a process of electronic de-duplication – a process that literally takes out all the duplicate documents. The parties had agreed between themselves to use the predictive coding technique subject to the court's view. At the court hearing, the judge concluded that the technique was appropriate in this case basing his decision on the parties' agreement as well as the following key points:

  • predictive coding was not prohibited by the CPR, was appropriate in certain cases and, on current evidence, was no less accurate than manual or keyword review;
  • where the initial sampling was done by a senior lawyer, the results could be more consistent than a manual review carried out by many, more junior, fee earners;
  • the large number of documents was a relevant factor: a manual search of all documents would be immensely expensive and unreasonable in the face of a cheaper alternative; and
  • the value of the claim was also large and the estimated cost of predictive coding could be justified as proportionate in this case.

Perhaps in a nod to the relative novelty of the process, the court also pointed out that there was sufficient time left before trial for other methods to be used should predictive coding not work.

While each case will be decided on its facts, the court's review in the Pyrrho case of the available authorities, CPR and textbooks will be useful in future to those deliberating whether predictive coding is appropriate to their dispute.

For those interested in more detail about the predictive coding process, it is worth reading the judge's summary at paragraphs 19 to 24 of the judgment.

A second decision involving BCA Trading, reported by The Lawyer on 18 May 2016, gave an order for predictive coding technology to be used as part of a substantial document review. The case report is not yet available but appears from The Lawyer's report to be further support for the application of this technology in appropriate cases.

For further information, please contact Alastair Young or one of the team listed on the right.

Highlights of recent decisions on court procedure

Here's our pick of recent decisions on the Civil Procedure Rules and procedure in general.

Whether to apply for a hearing on preliminary issues

  • Construction claims often involve difficult issues of law, a complex set of facts and extensive evidence. Once a construction claim is started in the Technology and Construction Court (TCC), a party can apply to have one or more of the most important issues dealt with in isolation from the rest of the claim as "preliminary issues". A preliminary issues hearing can be a useful device to obtain a judicial decision on a key issue that forces parties to think more carefully about their overall position. This type of hearing often leads to settlement thereby avoiding trial. However, it is not a suitable procedure for all claims.

In Walter Lilly & Co Ltd. v. Clin [2016] EWHC 357 (TCC), Edwards-Stuart J confessed at the end of his judgment that the decision to hear preliminary issues in this particular case was probably not wise. His comments emphasise two key points to bear in mind when considering whether to take this step in litigation proceedings:

  • Parties must take care to formulate the preliminary issues carefully to ensure that all key elements of the claim can be dealt with effectively: the court will not go outside the scope of the agreed issues.
  • Courts will be hard pushed to determine issues of principle if the parties have not established the underlying facts first.

A reminder about drafting effective pleadings

  • It is important to set out all causes of action in the particulars of claim. In Trilogy Management Ltd. v. Harcus Sinclair (a firm) [2016] EWHC 170 (Ch), permission was given to remedy inadequate pleadings. However, parties should not rely on obtaining an order to amend pleadings from the court: it might not be given. There's also a risk that the limitation period for the cause of action might have expired leaving the pleading party unable to put its claim.

Other litigation news

  • Rights of audience in the Higher Courts: we are delighted to announce that two of our Dispute Resolution associates have recently obtained their Higher Rights of Audience*. Suzanne Fairbairn and Phil Vickers are now qualified to appear on behalf of clients in the UK's higher courts.

(*Under the Solicitors' Higher Rights of Audience Regulations 2011, any solicitor or registered European lawyer who wishes to exercise rights of audience in the UK's higher courts must pass a compulsory advocacy assessment in order to gain the qualification.)

Alternative Dispute Resolution (ADR) and settlement

Be careful what you agree to! You might be compromising more than you think

  • In Khanty-Mansiysk Recoveries Ltd v. Forsters LLP [2016] EWHC 522 (Comm), the parties had entered a settlement agreement to resolve an issue relating to unpaid invoices. The defendant later argued – successfully – that this agreement also acted as a general release of and compromised the claimant's other claims including a £70 million negligence claim. The parties' agreement was written clearly in wide terms and covered claims "whether in existence now or coming into existence at some time in the future, and whether or not in the contemplation of the Parties". The judge found the last words particularly important in that the parties were, in effect, agreeing that claims not yet in existence nor even in the contemplation of the parties fall within the scope of the release. In upholding the agreement, the court refused to rely on the decision in Bank of Credit and Commerce International SA v. Ali [2002] 1 AC 251, in which the judge had said that, "in the absence of clear language, the court will be very slow to infer that a party intended to surrender rights and claims of which he was unaware and could not have been aware". (See paragraph 26 of the judgment.) Instead, the claimant was held to have compromised all its claims and not just the one on the unpaid invoice.

For those wanting to read the terms of the settlement agreement which caused the claimant to lose his right of action, see paragraphs 13 to 15 of the judgment.

Mediation Audit

  • The Centre for Effective Dispute Resolution (CEDR) published its 2016 Mediation Audit on 11 May 2016 (click here for the full report). The audit shows that "in the last 12 months, £10.5 billion worth of commercial claims were mediated and that through mediation this year businesses will save £2.8 billion in management time, relationships, productivity and legal fees". The mediation success rate has remained constant at 86% although "the proportion of cases achieving settlement on the day of mediation has fallen from 75% to 67%". According to CEDR, the latter statistics could be due to the increase in cases that settle shortly after the mediation rather than on the day itself.

For CEDR's full summary of the findings, click here.

The new and improved adjudication pilot scheme for professional negligence claims

The adjudication pilot scheme for professional negligence claims is loosely based on the successful adjudication scheme used in construction disputes and is intended to enable parties to a professional negligence dispute to obtain a quick adjudication (within 56 days) at a relatively low cost (up to £10,000 plus VAT) that would be binding on the parties unless the contrary was agreed at the start.

To read more, click here for an article by Tim Constable and Laura White.

Adjudication case round up

Here's our pick of some recent decisions on adjudication.

Be sure your challenge has merit before resisting enforcement of an adjudication decision

Successful parties in adjudication proceedings can apply to the court to enforce an adjudication decision – and most do so comfortable in the knowledge that the courts generally take a strict approach to enforcing adjudication decisions.

That same knowledge should make those on the receiving end of an adjudication order to pay up think long and hard before challenging the successful party's enforcement application. If the judge finds your challenge to be without merit, you risk having to pay not only the debt but also extra costs and a higher rate of interest on the outstanding debt under the Late Payment of Commercial Debts (Interest) Act 1998.

In AMD Environmental Ltd v. Cumberland Construction Company Ltd [2016] EWHC 285 (TCC), the court had to deal with a disputed adjudication enforcement application. The grounds raised in challenge included the alleged absence of a crystallised dispute at the time of the notice of adjudication, and the failure of the adjudicator to address the matters in issue. As the judge explained within the judgment, a novel alternative argument was raised within that first point, namely that the adjudicator had acted in breach of natural justice in seeking to obtain, and obtaining, further information from the claiming party which had – allegedly – not been provided before. The court concluded as follows.

  • The defendant, Cumberland, had argued that the adjudication should not have gone ahead as the contract was not in writing. The statutory requirement for a construction contract to be in writing in order for the Housing Grants, Construction and Regeneration Act 1996 (the Construction Act) to apply has long since been superseded by the 2011 amendments to the Construction Act and this argument was therefore dismissed swiftly by the judge.
  • Cumberland had also laboured an argument that the dispute had not crystallised and the court should therefore refuse the enforcement application. The court noted that the crystallisation point had already been dealt with clearly (and dismissed) by the adjudicator. The judge, however, made clear his view that the current dispute had crystallised not least because Cumberland had acknowledged as much after the ruling was given and had not reserved its right to challenge on this ground. In concluding that "the crystallisation argument [was] hopeless", the judge referred to a few cases including Ringway Infrastructure Services Ltd v. Vauxhall Motors Ltd [2007] EWHC 2421 (TCC): "in general terms, the courts have found that a claim which is not accepted in whole or in part for a reasonable period thereafter, is deemed to be disputed". (Paragraph 8 of the judgment.)

(Usefully, for those wondering how long a reasonable period might be, the judge added: "Eight months of detailed too-ing and fro-ing between the parties is, in my view, ample evidence of a dispute having crystallised.")

  • The fact that additional particulars of the claim were not always forthcoming during the adjudication was also dismissed as a ground for resisting the adjudicator's decision:

"Disputes about an alleged lack of particularisation are commonplace in building contract disputes. They are part of the overall dispute between the parties. In an ordinary case, a paying party cannot put off paying up on a claim forever by repeatedly requesting further information; a fortiori, a paying party cannot suggest that there is no dispute at all because the particularisation of the claim is allegedly inadequate. Any other conclusion would allow a paying party limitless time, either to avoid an adjudication altogether, or at least to avoid the enforcement of any adverse decision. It would deprive the payee of its statutory right to adjudicate." (See paragraph 15 of the judgment.)

Besides, the judge also found that the claim itself was sufficiently clear and far from being "nebulous or ill-defined".

  • The judge dismissed the argument that the adjudicator's requests for further information and AMD's compliance with those requests amounted to a breach of natural justice. The judge thought it in keeping with the Scheme for Construction Contracts and basic principles of adjudication that an "adjudicator [be allowed] a wide leeway to seek information that he or she believes to be important". (Paragraph 20 of the judgment.)
  • Finally, Cumberland's allegation that the adjudicator had not dealt with some elements of Cumberland's case was also dismissed. The adjudicator's decision showed that the adjudicator had clearly considered the issues – and had simply reached a conclusion contrary to Cumberland's case.

Having dismissed all the challenges, the real sting in the tail for Cumberland came in the judge's final words when he was ordering them to pay a punitive interest rate of 6% and indemnity costs because:

"this adjudication decision should have been honoured some time ago, and the arguments in support of the defendant's position were properly categorised as hopeless. The TCC is concerned that too many adjudication decisions are not being complied with, and that there are too many disputed enforcements where the grounds of challenge are without merit. Thus a high interest rate under the Act will be awarded in such cases." (Paragraph 33.)

"For the same reasons … AMD were entitled to indemnity costs. There is plenty of authority that indemnity costs are appropriate in a case of this kind, where the challenge to the decision is without merit." (Paragraph 34.)

There's no risk of misinterpreting this warning. The TCC judges are tired of dealing with spurious challenges to enforcement applications. So: make sure your challenges have merit before resisting an enforcement application. Otherwise, pay up and, if you are still unhappy with the decision, you can take your claim to court or arbitration later.

Adjourning enforcement proceedings on the basis of manifest injustice will be rare

It is worth mentioning another recent enforcement case here, namely that of RMC Building & Civil Engineering Ltd v. UK Construction Ltd [2016] EWHC 241 (TCC). The defendant was a contractor who had been ordered by an adjudicator to pay a sum to the sub-contractor claimant. The defendant resisted payment and the claimant started enforcement proceedings. Just before the hearing, the defendant made an application under Civil Procedure Rules (CPR) Part 8 for the court to make various declarations. It then applied to stay (that is, adjourn) the enforcement proceedings so that the claimant's enforcement application could be heard in the same hearing as the defendant's application together for declaratory relief. The defendant argued it would suffer manifest injustice if the enforcement proceedings went ahead (before the declaratory relief was decided) on the basis that it would lead to a windfall payment to the claimant and an adverse effect on the defendant's cash flow and business. The court refused the stay, distinguishing the facts of this case from the exceptional facts in Galliford Try Building Ltd v. Estura Ltd [2015] EWHC 412 (TCC) (in which the manifest injustice argument was successful) and making it clear that the manifest injustice argument will only succeed in rare cases.

Splitting a decision where the adjudicator gets some (but not all) of it wrong

(and a reminder of some basic principles on an adjudicator's jurisdiction)

Adjudicators must deal with the dispute referred to them and no more. Where adjudicators exceed their jurisdiction, but only in small measure, the court will consider splitting the adjudication decision and severing the part made in error. This is exactly what happened in Stellite Construction Ltd v. Vascroft Contractors Ltd [2016] EWHC 792 (TCC).

The adjudicator was asked to consider whether time was at large. He decided that it was and in reviewing that decision the court found that it had been made within the adjudicator's jurisdiction. Both parties had approached the issues in a different way but the adjudicator had understood and reached his decision fairly based on the material put forward by the parties.

However, the adjudicator then went on to consider what would have been a reasonable time for completion: a reasonable enough next step to take given that he had the information on which to base that decision – but not one that he had been asked to consider. In deciding that the adjudicator was exceeding his jurisdiction in making a decision on this issue, the judge emphasised that: "It is important not to confuse the fact that the Adjudicator may have had material with which to decide an issue with having the jurisdiction to resolve it. The two are not the same."

In the circumstances, and because the second part of the decision was a discrete point, the judge ordered that it be severed from the overall decision and rendered unenforceable.

The key reminders to take away from the decision are as follows:

  • It is crucial for a party referring a dispute to adjudication to ensure the scope of the dispute is well drafted in the Notice of Adjudication. The notice "defines the ambit of the adjudicator's jurisdiction and any jurisdictional issues will be considered by reference to the nature, scope and extent of the dispute identified in that notice". (See paragraph 48.)
  • The adjudicator has no jurisdiction to vary the basis on which the reference has been made (as set out in the Notice of Adjudication). (See paragraph 49.)
  • "Dispute" is a word interpreted broadly to mean "whatever claims, heads of claims, issues or contentions or causes of action that are then in dispute which the referring party has chosen to crystallise into an adjudication reference". (See paragraph 50.)
  • Generally, given the limited timetable allowed by adjudication, on the question of the scope of the referred dispute the "courts are going to have to give adjudicators some latitude" and not take an "unduly restrictive" view. (See paragraph 53.)
  • "An adjudicator should not decide a point on a factual or legal basis that has not been argued or put forward in the submissions made to him." (See paragraph 54.) If they do, they risk being in breach of natural justice. It is, however, difficult to apply this rule but it should be borne in mind that "an adjudicator must have strayed significantly outside the ambit of the materials and matters advanced before him without giving the parties an opportunity to comment or, where relevant, put in further evidence, in order for there to be a finding that an adjudicator has acted in breach of the rules of natural justice". (See paragraph 59.)
  • "There is no rule that a judge, arbitrator or adjudicator must decide a case only by accepting the submissions of one party or the other. An adjudicator can reach a decision on a point of importance on the material before him on a basis for which neither party has contended, provided that the parties are aware of the relevant material and that the issues to which it gave rise had been fairly canvassed before the adjudicator. It is not unknown for a party to avoid raising an argument on one aspect of its case if that would involve making an assertion or concession that could be very damaging to another aspect of its case." (See paragraph 62 taken Roe Brickwork Ltd v. Wates Construction Ltd [2013] EWHC 3417 (TCC) (at paragraph 24).)

International dispute resolution (Middle East, Singapore, Canada)

Middle East: Dubai

  • In DNB Bank ASA v. Gulf Eyadah Corporation and Gulf Navigation Holdings PJSC CA 007/2015, the Dubai International Financial Centre (DIFC) Court of Appeal has delivered a landmark judgment which expands the jurisdiction of the DIFC courts and allows it to be used as "conduit" jurisdiction.

To read more, click here

Singapore

  • The Singapore Choice of Court Agreements Act (CCAA) was enacted on 14 April 2016 and ratifies Singapore’s treaty obligations under the 2005 Hague Convention on Choice of Court Agreements (2005 Hague Convention). This means that, where a Singapore court is the chosen court under an exclusive choice of court agreement, courts of other contracting states are obliged to suspend or dismiss parallel proceedings brought in their jurisdiction in favour of the Singapore court unless certain exceptions apply (e.g. where the agreement is null and void). Further, Singapore court judgments obtained in proceedings pursuant to such an exclusive choice of court agreement must be recognised and enforced by all the other contracting states unless certain exceptions apply (e.g. where the agreement is null and void).

28 countries (namely Mexico and the European Union member states except Denmark) are currently party to the 2005 Hague Convention. The United States and Ukraine have signed the 2005 Hague Convention but have not yet ratified it.

Click here to read the full article on the effect of the CCAA by our Singapore colleagues, Philip Jeyaretnam and Kia Jeng Koh: A new breakthrough – Working towards globalising the enforceability of Singapore court judgments.

Canada

  • Resolving construction disputes, Canadian style: our Canadian colleagues have published an article on strategies to employ during the various stages of a construction project. The general principles are of use for UK construction and it is worth a read.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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