In Depth Problem Question
Tom comes to you. He is a commercial director for a large contracting company, SR Construction PLC. They are the main contractor in the development of a new headquarters building for a fast growing company “Comtech” in the North of England.
The work is done under a bespoke contract but most of the provisions follow a similar wording to a standard form of construction contract [students may deem this to be a FIDIC or JCT form as required].
Unusually, however, the founders of Comtech required the insertion of a clause into the contract that both parties had to meet the contractual requirements “as provided herein but always underpinned by the principles of mutual respect and cooperation”
While the project started positively; recently, things have not been going so well. The Comtech HQ is being built on the outskirts of a large town. The HQ runs next to an existing large farm and one of the conditions of the project being given permission was that the farm had to get access under the main road into the site – through a tunnel (the appropriate arrangements were made in terms of allowing that access, which you do not need to concern yourself with).
The tunnelling works were designed and carried out by a tunnelling subcontractor. However, there seems to have been an issue with the structure of the tunnel and it has collapsed. It is thought that the subcontractor is liable.
This is causing loss to the farmer whose access is restricted. One of Tom’s colleagues who has been to recent CPD talks has remarked that the collapse has caused a big hole in fact and potentially a “black hole” in law. Tom is not sure what he means beyond a recollection that legal black holes are found where a party has breached contractual obligations, but the loss is felt by someone who is not a party to the contract.
The collapse has also delayed the works on site.
The claim for an extension of time is rejected in the first instance because the project manager/engineer/contract administrator considered that there were concurrent delays from the variations. This is being disputed.
At a recent meeting to try and ‘reboot’ the project, Tom tells you, SR produced a bundle of papers setting out their various proposals across a range of issues involved in the project. These were produced in a large file with subdividers. In amongst the bundle, SR included their most recent payment application – the relevant subdivider was indexed as “payment” but was found on the third page of the index – and in the 5th folder of papers. The payment cycle for the project broadly followed that found in the Scheme for construction contracts. The meeting broke up before the topic was discussed but Tom says he believes that this amounted to sufficient application for payment. In the regular site meeting, Tom says, SR were asked if they were producing a payment application and Tom told the contractor administrator that “they (i.e. the ‘client side’) had been given what they need”. No pay less notice was served and so Tom wonders if there is scope to get the cash. Alternatively, he is interested to know how this might fit into the big picture in terms of the various levers he can deploy.
Tom is content on the basics of concurrent delay but is otherwise keen to know what the issues are for the project and where things stand.
You agree to produce a report for him which he can use as the basis for discussion with the board. As you get back to the office from the meeting, you take a call from Tom. He has picked up an email which has been forwarded to him by the commercial director of the Employer – that email says that the Employer has had enough of the “chaos” and wants to “call it quits”. Tom thinks this might be a chance to get out of the contract – isn’t this a repudiatory breach? You say that he needs to consider the position and you will cover it in your report.
Question: prepare the report mentioned above covering the topics identified and others which can be drawn directly from the scenario. The report is for Tom and so should be clearly explained and referenced – but something that he can provide to the board if they want to see it. It should contain advice on the law and on the next steps (although you can assume that all who will read it are aware of the key features of different forms of dispute resolution). It should also set out what further information is required.
The citation style : Oxford Standard for Citation of Legal Authorities (OSCOLA)
http://www.law.ox.ac.uk/publications/oscola.php
In Depth Case Study –
Introduction
It provides a structure for research within the context of dealing with a set problem question.
The main contrast for the case study is the dissertation and the research project. For the dissertation or the shorter research project, the student has the freedom to think about and identify the topic for consideration and investigation themselves, consider the situations which give rise to the complex legal decisions such as the Multiplex litigations over the Wembley stadium or the Walter Lilly v MacKay case; it is obvious how there can be issues which are complex and require careful consideration and research.
Aims
To provide the student with the opportunity to plan and execute an extended investigation the legal and factual issues arising out of a detailed problem scenario and to report or deliver the results of that investigation in a practice oriented format.
Learning Outcomes
- Identify and investigate the key issues arising from a set scenario
- Identify and deploy appropriate research methods in carrying out the task set.
3 Analyse and critically evaluate the legal research and its application to the issues arising from the case study
4 Present the results of this investigation in an appropriate and professionally oriented manner
