Corporate Raider Associates LLP (‘Corporate Raider’) has within the last two years, in a corporate takeover, acquired the shares of a construction company, Sitting-Duck Construction Targets Limited (‘Sitting-Duck’). During the course of Corporate Raider’s due diligence exercise, carried out in the context of the acquisition, Corporate Raider’s advisers flagged up deficiencies in the wording of various items of construction documentation. Corporate Raider ultimately took a commercial view on the documentary shortcomings. In the overall scheme of things, Corporate Raider was not especially concerned about the construction documentation and was happy to proceed with the acquisition regardless.
That decision comes back to haunt Corporate Raider, however, because it emerges that design defects in a city centre residential development with which Sitting-Duck was involved as main contractor prior to the takeover – i.e. defects which were, it would appear, ‘latent and inherent’ at the time of the takeover – have emerged as possibly significant structural defects which could prove costly to put right, though at this stage no one has sustained actual loss as such.
A number of stakeholders with historical or continuing interests in the completed development – including the original developer who was the Employer under the construction contract – are beginning to pick through the development documentation with a view to identifying where the liability for carrying out remedial structural modifications to the development might lie. It emerges that Sitting-Duck had taken on overall responsibility for design to the original developer and others such as funders and occupational tenants in terms of the design and build contract and a number of collateral warranties and similar contractual arrangements. However, it also emerges that before Sitting-Duck first became involved in the project some preliminary design work was carried out by a firm of consulting engineers – ScotFree Consulting Partnership (‘ScotFree’) – and it is now generally accepted that the structural defects which have come to light are the result of design flaws for which ScotFree was primarily responsible.
Under the share purchase agreement, the vendor of Sitting-Duck’s shares has no liability to Corporate Raider because Corporate Raider accepted the construction documentation ‘warts and all’. So Corporate Raider and Sitting-Duck – having regard to their respective interests in the developing discussions about liability – begin to focus their attention upon the terms of a novation agreement that was entered into among the project developer, ScotFree and Sitting-Duck. The intention of the novation agreement was to ensure that ScotFree continued to have responsibility to Sitting-Duck in respect of ScotFree’s previous design input as if ScotFree had originally contracted under the appointment agreement directly with Sitting-Duck and not the project developer. Sitting-Duck now wishes to investigate whether ScotFree can be made to shoulder all, or at least some, of the responsibility for the potentially costly design flaws. Attention naturally focuses on detailed provisions of the novation agreement.
One important provision is in the following terms – this has been heavily annotated to assist comprehension:
“The liability [i.e. in respect of the application of professional skill, care and diligence in executing design of the project under the Appointment] of the Consultant [ScotFree] under the Appointment [i.e. between ScotFree and the original developer, being the Employer under the construction contract] whether accruing before or after the date of this Novation Agreement shall be to the Contractor [Sitting-Duck]; and the Consultant [ScotFree] agrees to perform the Appointment and to be bound by the terms of the Appointment in all respects as if the Contractor [Sitting-Duck] had always been named as a party to the Appointment in place of the Employer [i.e. the original developer].”
[Without annotations the clause reads as follows: “The liability of the Consultant under the Appointment whether accruing before or after the date of this Novation Agreement shall be to the Contractor; and the Consultant agrees to perform the Appointment and to be bound by the terms of the Appointment in all respects as if the Contractor had always been named as a party to the Appointment in place of the Employer.”]
In correspondence between the lawyers acting respectively for ScotFree and Sitting-Duck, ScotFree denies that it now has any liability or responsibility for the relevant design flaws, or for putting right structural defects, in the residential development. ScotFree’s managing partner comments:
‘We can walk away from this Scot free’.
Having regard to relevant leading case law evaluate, with a view to advising Sitting-Duck, the legal and contractual issues arising in this problem scenario, including the possible legal effect of (among other things) the clause extracted from the novation agreement (as above); and give a reasoned opinion as to whether Sitting-Duck can legally hold ScotFree to be responsible for the design flaws, and for rectifying the resulting structural defects, in the residential development.
(In the course of your answer it may be necessary to speculate or hypothesise about the existence, and effect, of other contractual arrangements not specifically mentioned, or not mentioned in any detail, in the problem scenario.)
[WEIGHTING: 40% OF SECTION A LEGAL PROBLEM AND 20% OVERALL]
In order to strengthen and protect the legal and contractual position of the contractor in a situation such as outlined in this problem scenario suggest – with an appropriate explanatory commentary in each case – ways in which the wording of a novation agreement could be drafted and/or amended and whether additional protections could be incorporated into other contractual arrangements (such as in the construction contract between the contractor and the developer/employer).
(For this purpose, you have the option of literally attempting the drafting of the necessary legal provisions. But in any event you should include an appropriate explanatory commentary for the modifications proposed.)
Word limit for Section A Legal Problem: 2,000 words (plus or minus 10%)
Write an essay critically evaluating the adjudication and statutory payment provisions of the Housing Grants, Construction and Regeneration Act 1996 (and related secondary legislation) all as amended, which had their origins in Sir Michael Latham’s report, Constructing the Team, published in 1994. The essay should include a discussion of the nature of adjudication as a unique dispute resolution process with characteristics of both arbitration and expert determination.
Also consider in the process how successful the adjudication and statutory payment provisions of the 1996 Act (and related secondary legislation) have been in tackling the reportedly acute financial and cash-flow difficulties of the late 1980s and early 1990s which set the scene for the Latham Report.
We are in the period, where we frequently conceive distinctive kind of issues, some have a serious trouble in it and some resemble to be streak right away. Destitution, money related unsteadiness, joblessness are a portion of the fundamental issues our general public have looked from various years, yet separated from that issues there are such issues which truly makes the world like a damnation. I expect to occupy expectations towards a few issues, which turns out to be so regular over the globe. Vitality Crisis and its preservation and natural issues are a portion of the primary issues our general public has been looking from recent years. Before going further in to the points of interest of its effects and the issues which may emerge from its dangers, how about we investigate Energy Conservation and distinctive ecological issues. AN OVERVIEW OF ENERGY CONSERVATION: Power and vitality is presently turns into a vital piece of our standard life. Accept or not we are absolutely on the leniency of the vitality to achieve our distinctive undertaking. It has been watched that, and we likewise saw that, the dread of vitality emergency has been surging from recent years tumultuously, which intercedes between the nation to practical monetarily. After listen the name of the vitality emergency, the thing which in a flash snaps in our brain is the moderation get ready for this activity and to condense its dangers as needs be. The act of diminishing the amount of vitality utilized is known as the vitality protection. Proficiently utilizes anything will upgrade the profitability of that thing and will gather the perils related with it. Various traits are related with the preservation of vitality like reasoning the budgetary cost which at last consequences for the primary concern, different points of interest incorporates national security, individual security and human solaces. One of the critical types of vitality is the Electrical vitality, which is being used by the people exaggeratedly that is the reason the preservation of vitality is named as an essential component of the vitality arrangement (Mike Adams, 2008). There are various issues associated with the vitality protection which intensifies the circumstance, which we will analyze in subtle elements when we move further. Issues ASSOCIATED WITH THE ENERGY CONSERVATION: Before going in to the points of interest of the issues of the vitality, I need to complete an attitude of my perusers with respect to the employments of vitality. Give me a chance to specify a few cases related with the change of various kinds of vitality into the type of vitality and warmth. I have discovered a procedure of vitality transmitting and preparing which is said underneath. • Oil is being consumes to deliver warm. • Heat heats up the water • Water at that point transforms into steam • Steams Pressure than turns a turbine • Turbine use to on the electric generator. • Generator than produces power. • Electricity than engages the lights, which gives us (the end clients) lights and warmth. The fundamental issue lies with the vitality is the exhalation of various kinds of damaging and devastative gases which ruin the strength of a man in an absurd way. Carbon dioxide is one of the fundamental dangers for the strength of the individual. Various individuals agreements that the gas go about as a straightforward cover because of the air work. Artificially, carbon dioxide is burning of gas, coal and oil which utilizes as a part of the warming framework and in auto motors (Mike Adams, 2008). Wellbeing experts and Doctors said that, carbon dioxide is the most hazardous gas for the individual which destroys the respiratory arrangement of a man after entrance that is the reason the Doctors urges a great deal to keep remove with plants around evening time in light of the fact that the plants discharge the carbon dioxide which can be scatter in a man in the event that he doesn't contemplate the security majors. Aside from the perils of carbon dioxide sulfur dioxide is additionally a noteworthy enemy of the human's wellbeing. Sulfur dioxide discharged noticeable all around when the coal is being copied. Sulfur dioxide produces with the consuming of coal which infiltrates in the mists after respond with water and oxygen to from precipitation which ordinarily knows as "corrosive rain", which isn't even damaging for the person yet additionally for the ocean flavors. Corrosive rain is exceptionally hurtful for the human's skin and at times it assumes an indispensable part to blow up the dread of skin malignancy. There are various variables which impacts on the preservation of vitality, dangers of serious infection are the a few cases of it. HOW ENERGY CONSERVATION MITIGATE SUCH PROBLEM We are in a time where the advancements truly matters and we can't hold up under the emergency of this vitality. Vitality protection is an overcome and intense advance towards productively utilize the vitality in broadened parts. Electrical vitality and oil is the primary concern which we need to use for the financial improvement of a nation. The inaccessibility of these two things will make the circumstance turbulent for a nation. How about we find in points of interest what esteem effective vitality preservation can include the records for a nation. ? Augmentation in the vitality proficiency, resultantly makes the vitality generally less expensive, which is similarly gainful for the clients and for the Government too. ? Expanded vitality productivity will prompt improve the financial and physical development, which spikes the chart of vitality use in the entire economy. ? Proficiently utilizes the fuel vitality will build the generation among the ventures of a nation which prompts a higher personal satisfaction. ? The dangers we talked about before, which will be conceived from the poisonly gases like carbon dioxide and sulfur dioxide can be subside with the assistance of vitality preservation. It will decrease the impacts of cerebral pain, push, circulatory strain, exhaustion and work weight. ? Media transmission turns into a noteworthy part to feasible an organization monetarily as various business been done on the phone, so we must be careful with respect to the proficient utilization of media transmission vitality from a business point of view. ? It is watched that electric engines, similar to lifts, water pumping machines, coolers and other electric home apparatuses expend over 60% of all electrical vitality, which turn into a noteworthy reason for the loss of 10 to 20 percent of all power. Keeping in mind the end goal to handle with this danger, we must be careful allowed the wastage of vitality. What would we be able to do in this respects, isn't a tough errand by any means, utilize the electrical machines when we utilize it like globules, press, juicer blender and all such sort of things. ? The issue of vitality emergency perseveres in the entire world, in view of the inaccessibility of the regular assets to deliver the power vitality. ? Utilization of bike and strolling thoroughly as opposed to heading to overcome on the fuel emergency. ? Utilize air to dry garments as opposed to the garments dryer machine. ? Introduce a programmable indoor regulator in your room cooler and ventilation systems, which consequently changes the temperature when you are sleeping or away. ? Turn off lights when leaving a room. The perspective of vitality preservation, is been characterized to give a careful review of sustainable power source, now we should investigate the position of sustainable power source. AN OVERVIEW OF THE RENEWABLE ENERGY: The vitality which has been produced from the normal assets, similar to the daylight, rain, tides, wind, and geothermal warmth which can be refill serenity is called sustainable power source. It has been evaluated that in the year 2006, around 18% of the worldwide vitality utilizations originated from sustainable from which 13% inevitable from biomass like from consuming of the wood. Hydroelectricity is known as the second biggest asset of the sustainable power source which conduced 3% of the vitality utilization and 15% of electric age over the globe in the year 2008 (Global Status Report 2007). Wind control is additionally an acclaimed type of the sustainable power source which has a noteworthy development rate of around 30% every year with an introduced limit of more than 121,000 megawatts in the year 2008, which has been hugely utilized as a part of Europe and in the United States of America (USA) (Renewable Global Status Report: 2009 Pg-9). According to estimation the yearly assembling yield of the photovoltaic business ruptured the level of 6900 MW in the year 2008. The photovoltaic power stations are very prevalent in Spain and Germany as a result of their solid execution. Sun powered warm power station is likewise one of the well known stations which for the most part work in USA and Spain. The biggest of the sun based warm power station produces 354 MW worked in the Mojave Dessert. The Geysers is the world biggest Geothermal Power Station (GPS) which is situated in California, with a record or evaluated limit of 750 MW (Calpine Corporation - The Geysers". "Recovered from http://www.geysers.com"). Brazil is the nation who has the biggest setup program of the sustainable power source; it likewise includes the creation of ethanol fuel which has been delivered with the assistance of the sugar stick and the embodiment of the ethanol gives 18% of the nation's car fuel. Aside from the Brazil, ethanol fuel is additionally abundantly accessible in USA, while the greater part of the sustainable power source ventures and its generation on the extensive scale are likewise suited to the little off-network applications which some of the time situated in the rustic and remote territories, wherein the segment of the vitality are so fundamental for the human improvement (World Energy Assessment (2001). Sustainable power source innovations, pg. 221). Kenya is the nation which has the world's most astounding family unit sun based proprietorship rate with around 30,000 little (20-100 watt) sun based power frameworks sold every year (What Solar Power Needs Now Renewable Energy Access, 13 August 2007). The market of the sustainable power source has been conceive a nonstop development however the environmental change like the high oil costs and mounting government bolster are driving prodding sustainable power source enactment motivations and commercialization. HYDROPOWER ENERGY: Hydropower is definitely is the biggest wellspring of the sustainable power source, which gives 10%>GET ANSWER