When a party fails to comply with a condition precedent, especially if such a provision includes a time limit for the fulfilment of the obligation, it will often advance various arguments to avoid the consequences of non-compliance. The case of of ISG Retail Ltd v FK Construction Ltd [2024] EWHC 878 (TCC) is an interesting example of the issues that may arise in this scenario. In this Insight, Shy Jackson and Yorkie Fong take a closer look at this case.

The long-anticipated Construction Industry Security of Payment Bill (“Bill”) was gazetted on 17 May 2024 and was introduced into LegCo for its first reading on 29 May 2024. The Bill aims to establish a legislative framework for addressing improper payment practices among contracting parties in the Hong Kong construction industry. Once in force, the Bill will replace the Development Bureau’s pilot scheme for the introduction of security of payment provisions into public sector construction contracts which we discussed in our earlier Insights at Security of payment circular issued by the Development Bureau of Hong Kong – to take effect from 31 December 2021 and The new security of payment regime in Hong Kong – key issues to consider before its implementation.

In the case of Bellway Homes Limited v Surgo Construction [2024] EWHC 10 TCC, the court addressed whether it is possible to start a smash & grab adjudication but also a claim based on true value adjudication as a secondary position. Despite novel arguments to the contrary, the court determined that these are not separate disputes but rather form a single dispute that could be determined in one adjudication.

Without prejudice is a phrase often used in communications between parties seeking to reach settlement. Whether or not communications will be regarded as without prejudice will depend on their substance and we recently looked at a decision that highlighted the uncertainty that this can create in normal commercial discussions. This Insight takes a look at the recent TCC decision of AZ v BY [2023] EWHC 2388 (TCC), which looked at the effect of referring to without prejudice material in adjudication. In this case, this led to the decision not being enforced.