Simon Tolson's Building Magazine columns

Fenwick Elliott's senior partner, Simon Tolson, has frequently contributed articles to Building Magazine. We summarise a selection of his columns below:

The OFT's virtuous circle - who needs friends!
17 February 2006

Simon Tolson discusses the "leniency programme" put in place by the OFT to encourage individuals to denounce anti-competitive practices.
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In brow-mopping mode
28 January 2005

To what extent does a client have the right to refuse to disclose confidential information passing between itself and its lawyers to third parties?
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Partial possession - an incomplete article
30 April 2004

In a further article drawing on his experiences when he undertook a building project in a Georgian end of terrace house in West London, Simon Tolson discusses some of the potential pitfalls that might befall you if you decide to move in early and take partial possession of part or parts of the works before they are completed.
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Hot potato
6 February 2004

There has been a recent run of cases where defendants have raised issues of contributory negligence on the part of the claimant. Simon Tolson discusses two which reached the Court of Appeal, where professionals were blamed for fires which destroyed a food factory and restaurant respectively.

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What hurts often instructs
19 December 2003

In the second of a two-part tale, Simon Tolson continues his tale of the pitfalls that befell him when he undertook a building project in a Georgian end of terrace house in West London and discovered that cowboys and fraudulent concealment are not a new phenomena.
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It ain't half what you think
12 December 2003

In the first of a two-part tale, Simon Tolson explains the pitfalls that befell him - despite the best intentions and being the recipient of highly competent advice - when he undertook a building project in a Georgian end of terrace house in West London.
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Invasion of the bodysnatchers
25 May 2001

Summarises the right to adjudicate in the context of name borrowing clauses in a construction management contract. It also highlights the strains that name borrowing provisions can have on the relationship of the management contractor with the employer and works contractors.
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Day of the triffids
20 April 2001

Highlights the problems that can arise in the construction process on contaminated land. This contamination can extend to hazardous plants and weeds such as Japanese knotweed, even after construction has commenced.
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What's it worth Guv?
9 June 2000

In the case of Serck Controls Ltd vs Drake & Scull Engineering Ltd, the Court held that there was sufficient judicial authority for the parties in a quantum meruit situation to assess their rights and also for the paying parties to know what they need to concentrate on to minimise their exposure. Is this always the case?
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Keep out of harm's way
28 April 2000

Explains that the imposition of large fines and cost orders provide clear evidence that health and safety is being taken more and more seriously by the Courts.
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Would you win in court?
28 January 2000

Queries what is early neutral evaluation? And would it benefit you?
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Be prepared
24 November 2000

Discusses the case of VEH Construction PLC v RBSTD Trust Company Ltd and the need for an employer, under the JCT Design-and-Build contract, to be aware of the time limits for querying an interim application for payment.
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All gas and gaiters
20 October 2000

Queries whether fuel strikes or other strike action fall within a force majeure clause thus securing extensions of time.
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A case of cut and snip
18 August 2000

Suggests parties cannot simply pick and choose those parts of an adjudicator's decision on which they wish to rely.
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A handy little friend to know
9 April 1999

Creditors often have to fight it out when a firm becomes insolvent. That is when those who know about "Romalpa" come into their own.
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What's the damage?
12 February 1999

How do the cases of P&O Developments Ltd v Guys & St Thomas Nation Health Trust and Royal Brompton Hospital National Health Trust v Frederick Alexandra Hammond and others approach the question of when a settlement reached with one party can be used as the basis of a claim against another.
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Possession and loss
26 November 1999

It is a commonly implied term that an employer must give a contractor possession of a site in sufficient time for it to complete the required works. The article asks to what extent is an employer liable for interference by uninvited third parties?
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Bad rates in tender
8 October 1999

Explains that the sole purpose of quoting tender rates is to establish a base for pricing variations. So, are contractors bound to the quoted tender rate unless the nature of the work changes?
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Quiet disenjoyment
27 November 1998

Examines the covenant which gives the tenant the right to recover damages from the landlord if those to whom the covenant extends physically and substantially interfere with the tenant's enjoyment of the land where he or she lives.
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Wrong first time
2 October 1998

Explores the care needed when closing a settlement and seeking a contribution from others. Where there is more than one party involved, the person sued can attempt to make the other parties pay their share.
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Roadworks rage
31 July 1998

The liability of public works contractors for hitting cables may be strict, but one qualification exists under the New Roads and Street Works Act 1991. Liability may be apportioned or reduced if damage results from the negligence or misconduct of the party who has actually suffered the damage.
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Is your site a public place?
26 June 1998

Suggests that, before starting work on your site, it is best to take practical steps to ensure that the site is "closed to the public" in order to avoid footing the bill for road traffic offences.
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Illegal contracts
1 May 1998

Examines the distinction between a deliberate infringement of the law and a situation where an illegality arises in effecting the terms of the contract. The law may assist parties in the latter circumstances.
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Giving it the works
27 February 1998

What does the phrase "works" really mean? Is it as straightforward as you might think?
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Financial advisors
21 November 1997

Summarises the potential liability consultants may open themselves up to when advising clients on financial matters.
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Self help - DIY justice
24 October 1997

Discusses the various "self-help" remedies that are still effective in the construction industry including seizing materials, removing materials, suspending work, ejecting a contractor and, most commonly, set off.
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Assign of the times
26 September 1997

Although specific provisions may prevent assignment without the consent of the other party, recent cases indicate that the Courts will frown upon that consent being unreasonably withheld.
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Don't talk to strangers
12 September 1997

Discusses the increase in negligent misstatement actions. Unless specific exclusions are made, a professional may be liable to action from an unrelated third party who suffers economic loss after relying on that advice.
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Contamination of land
25 July 1997

Discusses whether the case of Cambridge Water Company v Eastern Counties Leather has muddied the water of strict liability for contamination of land that existed under the Rylands v Fletcher rule.
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Nuisance and the builder
27 June 1997

Discusses the intricacies of statutory, private and public nuisance in a construction context.
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Blame v liability - a fair share
23 May 1997

The Civil Liability (Contribution) Act 1978 enables a tortfeasor to seek contribution from another if only one is sued. However, this is only possible if the "same damage" is suffered by the plaintiff.
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Payment and performance
8 April 1997

When is a contractor entitled to payment for work done? While the right to payment is often dependent on the contract wording, changes to the Housing Grants, Construction and Regeneration Act may provide some statutory assistance.
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Trials and tribulations of omitted works
27 March 1997

Discusses the difference between the variation of works as opposed to an omission of works.
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The Rule in Day v McLea - Take the money and run
28 February 1997

The doctrine of accord and satisfaction can assist recovery of amounts owing even after a cheque in purported final settlement of an account has been banked.
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