a clause in a contract which provides for ADR as a method of resolving disputes, see Drafting a resolution'>dispute resolution clause. The clause will usually require an ADR notice to be served on the other party. Even if there is no contract or clause it may be possible to serve an ADR notice on another party.

Also known as the employer's representative or project manager. In traditional contracts, this role is often fulfilled by the architect or contract administrator but under some design and build contracts, an employer's agent is appointed to act on behalf of the employer (referred to as a Project manager in the NEC3/NEC4 suite) to carry out contract administration and/or certification duties.

This week's edition of Insurance weekly highlights includes: the Association of British Insurers (ABI) notes that devastating storms that swept through the UK in 2023 drove up weather-related insurance claims by more than a third, hitting a record of almost £573m; the Association of Personal Injury Lawyers (APIL) claims that a third of those receiving payouts under the current personal injury discount rate might have been under compensated; The Court of Appeal, Civil Division, in Tyson International Company Ltd v Partner Reinsurance Europe Se dismissed the appellant’s appeal from the decision of the High Court that the document in dispute had been intended to replace the previous contract entered by the parties and that the arbitration clause which it contained was valid and binding; Lloyd’s Market Association (LMA) and Insurance Capital Markets Research (ICMR)’s report on on Lloyd’s 2023 results following the publication of all the syndicates’ accounts; the Financial Conduct Authority (FCA) has published the findings from the Post Implementation Review (PIR) of its rules which aim to improve access to travel insurance for consumers with more serious pre-existing medical conditions and the British Insurance Brokers’ Association (BIBA)’s response; the Prudential Regulation Authority (PRA)’s business plan for 2024/25 and an update on the Solvency II review; cases & decisions; key dates for your diary; and other news highlights reported over the past week.

Construction analysis: The Technology and Construction Court (TCC) awarded damages totalling approximately £35 million against a main contractor for construction defects in a luxury residential development. The claim by the freehold owner, under a collateral warranty, concerned serious defects at One Hyde Park including corroded chilled water pipework, failed butterfly valves, defective soldered joints and a non-functioning pantograph cradle. The defendant participated fully in proceedings until withdrawing funding and entering liquidation just before the February 2025 trial date despite its parent company's strong financial position. Following the defendant’s elective withdrawal, the court struck out the defence under CPR 39.3(1) but still required the claimant to prove its case, with the court's ability to test evidence being heavily constrained in the absence of cross-examination. The status of factual and expert evidence, where the defendant is not represented or present at trial, is considered and decided in this judgment, with reference to various legal authorities. Through examination of the evidence, including analysis of joint expert statements, the court found systematic breaches of the JCT contract through poor installation workmanship and defective materials, while confirming that expert reports have no evidential status unless the expert is called to verify them on oath. The judge criticised the defendant's conduct as ‘commercially amoral’ and accepted unchallenged expert evidence on the substantial remedial costs.

This edition of Employment weekly highlights includes: (1) a report from the High Pay Centre analysing the pay of FTSE 100 executives in 2023, (2) an EAT judgment upholding an employment tribunal’s rejection of dismissal claims despite a previous tribunal finding that there had been failures to make reasonable adjustments in an earlier period, (3) the Equality and Human Rights Commission (EHRC) report to the UN Committee on the Elimination of all forms of Racial Discrimination, (4) the US Department of Justice’s Criminal Division Corporate Whistleblower Awards Pilot Program, (5) an award of £115,000 to a Personal Assistant who was asked to unnecessarily go against coronavirus (COVID-19) restrictions by working from her employers’ homes, (6) an EAT decision about the irrelevance of an employee’s failure to appeal the outcome of their grievance when deciding whether or not the employer was in repudiatory breach of contract, (7) analysis of an EAT judgment on the need for an adjournment when there were real concerns about the capacity of a witness to give evidence, (8) publication by the European Commission of FAQs about the Corporate Sustainability Reporting Directive, (9) details of a review to be carried out by the Migration Advisory Committee on information technology and telecommunications professionals and engineering professions, (10) a new precedent policy on tips, gratuities and service charges, (11) the IRLR Highlights for September 2024, (12) dates for your diary, (13) updates to our legislation tracker and horizon scanner, and (14) new Q&As.

The Financial Conduct Authority (FCA) has launched a consultation on a proposed industry-wide Consumer Redress Scheme (CRS) for motor finance customers who may have been affected by inadequate disclosure of commission arrangements between lenders and brokers. The scheme proposed in CP25/27 Motor Finance Consumer Redress Scheme covers regulated motor finance agreements—including personal contract purchase (PCP), hire purchase (HP), and conditional sale agreements—entered into between 6 April 2007 and 1 November 2024, where commission was payable by the lender to the broker. It is intended to apply to individuals, sole traders, and small partnerships, including agreements from Gibraltar-based firms. The FCA’s review of 32.5 million agreements found widespread failures in commission disclosure, with an estimated 14.2 million agreements (44%) considered unfair. The scheme is designed to provide redress, reduce administrative costs, and protect market integrity. The deadline for responses to the redress scheme proposals is 18 November 2025, with a separate deadline of 4 November 2025 for comments on extending complaint handling timeframes.

Arbitration analysis: Hidroelectrica Santa Rita S.A. (‘HSR’) obtained an arbitral award against Corporacion AIC S.A. (‘AICSA’) following the cancellation of a hydroelectric project in Guatemala. AICSA applied to the US Courts to annul the award on the basis that the arbitral tribunal exceeded its powers. AICSA’s application was initially declined because the courts declared themselves bound by an Eleventh Circuit precedent that precluded vacatur of non-domestic awards on the basis of excess of powers. The Court of Appeal for the Eleventh Circuit, however, reversed this precedent thus conforming to other Federal Circuits. The decision on vacatur was remanded back to the District Court, which found that the arbitral tribunal had not exceeded its powers. The Court of Appeal upheld this decision confirming that a high hurdle must be surmounted before a court will hold that an arbitral tribunal has exceeded its powers. So long as an arbitral tribunal is even arguably construing or applying the contract—their decision must stand. Written by Alex Wilbraham, solicitor England and Wales, attorney California, independent arbitrator and member of Arbitra International.

Private Client analysis: This case represents a rare example of the court finding that a contract existed between family members (in this case, an elderly mother and her adult daughter). By her claim, the claimant sought to be reimbursed from her mother’s estate for the care that she had provided to her mother during the last few years of her life. The judge provided guidance relating to capacity to enter into legal relations and commented on what, if any, impact the existence of a Lasting Power of Attorney may have on this issue. It was also a feature of the case that the claimant’s mother had been diagnosed with dementia, and so this is also featured in the court’s consideration of capacity. Finally, the claim was also advanced on the basis of unjust enrichment, and the judge provided detailed analysis of whether ‘free acceptance’ is a valid unjust factor. In this last respect, his decision departs from the recent decision of H&P Advisory Ltd v Barrick Gold (Holdings) Ltd in which Simon Gleeson (sitting as a deputy judge of the High Court) dismissed free acceptance as a free-standing unjust factor, as well as obiter observations of Lord Burrows in Barton v Morris. Written by Ben Haseldine, barrister at 4 King’s Bench Walk.

Information pack on the retirement options available to a member of a personal pension scheme, stakeholder scheme, FSAVC, retirement annuity contract or pension buy-out contract, which providers of such schemes are required to provide retiring members with since 6 April 2015. The open market options statement must include the information set out in COBS 19.4.1AR.

In a design and build contract, the ERs are a contractual document setting out what the employer wants the works to entail and how it wants them to be carried out. ERs may also be included in a traditional contract if the contractor is undertaking a portion of the design.

When A, in full knowledge, permits X, who has contracted with A (or has through the course of negotiations believed agreement to be in place), to do something in good faith on the basis of the contract (or purported agreement), then X will be protected from A asserting that there is no contract (cf homologation).

This week's edition of Local Government weekly highlights includes coverage of the new National Procurement Policy Statement and the reissue of Procurement Policy Notes ahead of PA 2023 coming into effect on 24 February 2025 plus expert analysis of the decisions in Airwave v Secretary of State, where the court considered permission for late re-amendments to a statement of case in an emergency network contract dispute; R (Simpson) v NHS Mid and South Essex ICB, where the court clarified the standard of reasonableness review in NHS Continuing Healthcare challenges; R (MV) v Lewisham LBC in which the High Court quashed outdated housing policy decision at the request of the defendant; Khan v D'Aubigny, where the Court of Appeal clarified the application of statutory and contractual provisions regarding the service of tenancy documents, including the use of deemed service clauses and the common law presumption of service by post; R (Swansea CC) v Educational Tribunal for Wales in which the court found the correct route of challenge against a review decision of the Education Tribunal for Wales regarding a SEN statement is via statutory appeal rather than judicial review; and Mead Realisations v SSHCLG, where the court upheld the orthodox approach to planning guidance. Case reports include Working on Wellbeing Ltd Trading as Optima Health v SSWP where the Court of Appeal found the DWP failed to exercise discretion by not seeking clarification of obvious errors in Optima’s tender, leading to wrongful exclusion from competition; London Borough of Enfield v Snell, where the court granted an injunction to safeguard and support the Meridian Water Regeneration Project; and Trower v Elmbridge Borough Council, where the court declared Elmbridge Borough Council's PSPO unlawful due to the omission of river warning dispensation; R (Nash) v King's Lynn and West Norfolk BC) where the court found refusal of McKenzie friends to hearing and delay did not breach the claimaint’s Article 6 ECHR rights; R (CWJ) v Director of Legal Aid Casework (MIND intervening) in which an application was dismissed for judicial review of decision not to grant exceptional case funding for representation before a review panel regarding the claimant son’s permanent exclusion from school; R (Al-Ajeel) v LGSCO in which the court found that the judicial review claim against the Ombudsman’s decision did not merit permission due to lack of prospect of success and being out of time; and CT (by his Litigation Friend the Official Solicitor) v Lambeth LBC (Mind intervening) in which the court determined that declarations by the lower court regarding CT’s capacity were erroneous as the statutory process was not followed. This week's highlights also include further updates on Healthcare, Social housing, Education, Governance, Children's social care, Social care and Planning.