UK: Case Law Update – Issue 4 (2010)

Last Updated: 22 July 2010
Article by Keating Chambers


See William Hare v Shepherd Construction under Keating Chambers Reported Cases on the insolvency exception to the pay when paid provisions of the HGCR Act.

Two contracts argument fails

Supablast (Nationwide) Ltd v Story Rail Ltd [2010] BLR 211 TCC
Main contractor Story sought to challenge the jurisdiction of an adjudicator who had decided in favour of sub-contractor Supablast. Story argued that there were separate subcontracts for different elements of the works and that no adjudicator could preside over more than one adjudication. The court rejected this on the facts, holding that there was only one subcontract and/or the parties had behaved as if there was only one.

See Speymill Contracts v Baskind under Keating Chambers Reported Cases on the fraud defence to enforcement.

See SG South v Swan Yard (Cirencester) under Keating Chambers Reported Cases on 'statutory estoppel' in s.107(5) HGCR Act.

Construction Law Vol. 21 Issue 5 June 2010
contains the following articles:

Adjudication and liquidation
by Andrew Jones, HBJ Gateley Wareing

Injuncting adjudication
by Peter Stockill and Michael Taylor, 4 Pump Court

See Anglo Swiss Holdings v Packman under Keating Chambers Reported Cases on criteria for injunction to restrain adjudication.

See Yuanda (UK) v WW Gear under Keating Chambers Reported Cases on disapproval of Tolent clauses under s.108 HGCR Act.

Failure to consider defence condemned

Pilon v Breyer Group plc [2010] BLM Vole 27 No 5 TCC
The adjudicator's decision not to consider a defence relied upon by the defendant constituted a material breach of the rules of natural justice, rendering the adjudicator's decision unenforceable. The adjudicator had decided that he had no jurisdiction to consider the set-off defence raised by Breyer because related to elements of the work which were not in dispute. The case is notable for analayis of Quartzelec v Honeywell Control Systems. (Fionnuala McCredie)


Arbitration Vol. 76 No. 2 May 2010
contains the following articles:

Amendments to the Singapore International Arbitration Act
by Leng Sun Chan, Ang & Partners, Singapore

The role of the doctrines of champerty and maintenance in arbitration
by Jern-Fei Ng, Maxwell Chambers, Singapore

The court's powers to intervene in arbitration matters in England and Wales, with particular reference to the court's inherent and residual discretion
by Daniel Brawn, Kuit Steinart Levy, Manchester

The right of appeal and judicial scrutiny of arbitral decisions and awards
by the Hon. Justice Edward Torgbor, Stellenbosch University

'Litigation triage': the early assessment of civil and commercial claims and disputes
by Jonathan Haydn-Williams, Goodman Derrick

Jackson endorses the benefits of mediation in the legal process in England and Wales
by Ann Brady, Rougemont Chambers, Exeter

Mediation: a scheme in operation at the Mayor's and City of London Court
by Anthony Connerty, Lamb Chambers

Settlements in international arbitration: comments on the CEDR Settlement Rules
by Masood Ahmed, Birmingham City University

Effect of party insolvency on arbitration proceedings: pause for thought in testing times
by Jonathan Sutcliffe and James Rogers, Fulbright & Jaworski

Arbitration Law Monthly Vol. 10 No 6 June/July 2010
contains the following articles

Arbitral procedure
Car & Car Pte Ltd v Volkswagen AG in the Singapore High Court on the SIAC Rules.

Republic of Serbia v Image Sat International
on where jurisdiction is not justifiable in the English courts.

Agreement to arbitrate
Capes (Hatherden) v Western Arable Services
on whether an arbitration clause was incorporated by a course of dealing.

Commencing an arbitration
Lantic Sugar v Boffin Investments
on restriction on the Court's powers to extend limitation periods for commencement of arbitration.


Construction Law Vol. 21 Issue 4 May 2010
contains the following articles:

Suspension might not be repudiation
by Vijay Bange, Trowers & Hamlins
(on Mayhaven Healthcare v Bothma)
(Ian Pennicott and Krista Lee)

A right to repair
by Stuart Davey, Pinsent Masons

Forewarned is forearmed
by Martin Baldock, Stroz Friedberg
(on use of electronic evidence in litigation)

Enough already!
by David Owens, Clyde & Co
(on enforcement of adjudication, noting Amec Group Ltd v Thames Water Utilities Ltd)
(Simon Hargreaves QC and Lucy Garrett)


Construction Law Vol. 21 Issue 4 May 2010
contains the following articles:

Forms need checking against contract wording
by Michael Phipps, Thurston Consultants

Lords rule on letters of intent
by Chris Kirby-Turner, Thomson Snell & Passmore (on Chartbrook v Persimmon implications)

Avoid recipe for disaster
by Shona Frame, MacRoberts
(on precedence of contract terms)

Insurance cover for delayed projects
by John Wright, JD Risk Associates

Construction Law Vol. 21 Issue 5 June 2010
contains the following articles:

Definitions need to be brought together
by Michael Phipps, Thurston Consultants
(on JCT 2009 Guide, Appendix B)

FIDIC subcontract faces a test
by Tia Starey, Clyde & Co

Insurance and environmental liability
by John Wright, JD Risk Associates

Notices – a trap for the unwary
by Alexander Grant, Pinsent Masons

New remedies for public procurement
by Sophie Charveron, K&L Gates

Letter of intent and formation

RTS Flexible Systems Ltd v Molkerei Alois Müller GmbH & Co [2010] BLM Vol. 27 No. 4 Supreme Court
The defendant dairy manufacturer wished to retain the claimant to supply services for automation of processes and equipment. After providing some quotations, the claimant was awarded the job and the defendant issued a letter of intent, confirming its wish to proceed with the project 'as set out in the offer', subject to finalisation of price and completion date and using an amended version of the MF/1 form of contract, to be executed within four weeks. Work started as negotiations proceeded and the letter of intent was extended for three months. A final draft contract was produced but never signed, leading the claimant to commence proceedings. The TCC had held that, after the lapse of the letter of intent, the parties had reached full agreement on the obligations relating to the work. The CA held that MF/1 could not become operative until signed and thus no contract had been concluded after the letter of intent lapsed. The Supreme Court, allowing the appeal from the CA, held that the parties were working under a contract, but not on the same basis as the TCC had thought.


Occupiers Liability Act appeal fails

Mann v Northern Electric Distribution Ltd [2010] EWCA Civ 141 All ER (D)
15 year old claimant failed on appeal in proceedings under Occupiers Liability Act 1984. He had been seriously injured in an electricity substation, having climbed over six metre walls and railings with spiked wire. The CA upheld the trial judge's view that his means of access was not foreseeable and the defendant occupier was not in breach of its duty to him as a foreseeable trespasser.

Solicitors' negligence

Tom Hoskins plc v EMW Law [2010] EWHC 478 Ch. Div NLJ 23 April 584
Although a solicitor is not normally required to give general commercial advice to a client, here it was within the solicitors' retainer to advise assignees of a chain of pubs of the need to obtain the landlords' consent and what might be required, even though it was the clients who bore the responsibility of seeking the consent. The claim in negligence for this and for delay was held to be made out.


Issue estoppel

Hi-Lite Electrical Ltd v Wolseley UK Ltd [2010] BLR 225 TCC
Following a fire at the owner's premises, the owner sued contractor Hi-Lite, who had fitted a pump provided by the supplier Wolseley. Judgment was given against Hi-Lite, including the finding that the pump was the cause of the incident. Wolseley had not been involved to that point but Hi-Lite now sought contribution from it. Wolseley disputed the cause of the fire, which Hi-Lite claimed was an abuse of process since it had already been decided by a judge in proceedings where Wolseley could have applied to participate. The Court held that it was not abusive to 'keep their powder dry' while others litigated and it would not be unfair to allow Wolseley to dispute the first findings of the judge.

Frustration argument fails

Gold Group Properties Ltd v BDW Trading Ltd [2010] BLR 235 and BLM Vol. 27 No. 4 TCC
Barratt, the developer, argued that its development agreement with the site owner, Gold, was frustrated by the failure of the sale prices of the units on the project to meet the schedule of minimum prices. This was caused by the economic and property recession and the court held that this was not a frustrating event, reviewing the frustration case law. Neither were the minimum prices a condition precedent to Barratt undertaking the development.

Proprietary Estoppel

Henry v Henry [2010] BLM Vol. 27 No 5 Privy Council
In this appeal from the Court of Appeal of the Eastern Caribbean, the Privy Council gave judgment for the appellant. A landowner had died without fulfilling her promise to leave a share of land to the claimant in return for caring for her. The Privy Council found that the trial judge had been wrong to reject the claim for proprietary estoppel on the ground of absence of detriment. The appellant had foregone the opportunity of a better life elsewhere, which was capable of constituting detriment. The Privy Council applied the doctrine of proportionality in weighing promise against benefit.

Remoteness of damage in contract

Sylvia Shipping Co. Ltd v Progress Bulk Carriers Ltd [2010] BLM Vol 27 No 5 Commercial Court.
The House of Lords' decision in Transfield Shipping v Mercator Shipping was considered in this case and the 'orthodox approach' to remoteness under Hadley v Baxendale reasserted. Transfield had decided that the broader ground, based on 'assumption of responsibility' might be used, but the Commercial Court said that this would be in the minority of cases where the orthodox approach would lead to "an unquantifiable, unpredictable, uncontrollable or disproportionate liability or where there is clear evidence that such a liability would be contrary to market understanding and expectation".

The case concerned a time charter of a ship which had not been ready for sub-charter, use due to breach of maintenance obligations by the owners.

Uncertainty and assessment of damages

Durham Tees Valley Airport v BMI Baby Ltd [2010] BLM Vol 27 No 5 CA
The Court of Appeal rejected the defendant airline's contention that its contract with the airport was void for uncertainty because it did not specify the number of flights agreed. The CA emphasised the reluctance of modern courts to find a contract void for uncertainty. The court also rejected the defendant's argument that in assessing damages it should be assumed that the defendant would have performed the contract in the way most profitable to itself. The defendant had a single obligation to perform, albeit with some measure of discretion as to manner.

Construction Law Vol. 21 Issue 5 June 2010
contains the following article:

Keeping costs down
by Alastair Young, Gateley Wareing
(on litigation costs)

Misrepresentation and entire agreement

BSkyB Ltd v HP Enterprise Services UK Ltd [2010] BLR 267 and [2010] CILL 2841 TCC
The CILL focuses on misrepresentation aspects of the judgment on BskyB's claim regarding its commissioning of a customer relationship management system. The BLR Report is complete. One of the key aspects of the case was the scope of the entire agreement clause. Although it excluded any alleged collateral warranty or side agreement, it did not exclude the bringing of an action for negligent misrepresentation. Such a result could have been achieved but only by using clearer words. There are also important findings on causation, mitigation and quantum.


Speymill Contracts Ltd v Baskind [2010] BLR 257 CA
The respondent defendant, the owner, alleged that certain files, including withholding notices, had been stolen by the claimant contractor, the appellant. The CA, in granting summary judgment, with stay of execution, considered the fraud defence and the heavy burden on a defendant alleging it to support it with clear and unambiguous evidence. The CA approved SG South v King's Head Cirencester (Thomas Lazur)
Marcus Taverner QC
Jonathan Selby

William Hare Ltd v Shepherd Construction Ltd [2010] BLM Vol. 27 No. 4 CA
The Court of Appeal upheld the TCC in deciding that a pay when paid clause could not be brought within the insolvency exception, because the contract had not been updated to reflect the change in the statutory definition of insolvency. The CA was clear that the onus was upon the party seeking to rely on a clause of this kind to get it right.
Stephen Furst QC

Vector Investments v JD Williams [2010] BLR 195 TCC
In a professional negligence case, the client, Vector, had been awarded £750,000 damages against the defendant architect Williams out of the £6 million claimed. In the costs hearing, both parties claimed success. The court awarded Vector its costs up until the defendant's offer of settlement was made and 50% from there until the eventual Tomlin Order. The claimant was obliged to give £30,000 credit for costs wasted by the defendant as a result of the claimant's conduct on disclosure.
Paul Darling QC
Thomas Lazur

SG South Ltd v Swan Yard (Cirencester) Ltd [2010] BLM Vol. 27 No. 4 TCC
Notwithstanding that the contract in question was not in writing, the court upheld the adjudicator's jurisdiction on the ground that the defendants had expressly stated in writing that they did not object to his jurisdiction. The effect of s.107(5) was to act as a kind of statutory estoppel, preventing the deployment of this defence.
Thomas Lazur

Anglo Swiss Holdings v Packman Lucas Ltd [2010] CILL 2846 TCC
Part of the extensive Mentmore litigation, this element concerned an application for an injunction to restrain adjudication. The court considered the criteria for granting an injunction to restrain adjudication and found them similar in principle to those for restraining litigation as unreasonable or oppressive. On the facts, consultant engineers Packman would be granted an injunction to restrain adjudication. The clients had not honoured the first adjudication awards.
Marc Rowlands

Yuanda (UK) Ltd and WW Gear Construction Ltd [2010] BLM Vol. 27 No.5 and [2010] CILL 2849 TCC
The adjudication provisions under a trade contract on a London hotel project were an amended version of the TeCSA Rules, making Yuanda liable for all costs in the adjudication whatever the outcome. This was held not to be unreasonable for UCTA purposes nor void for uncertainty, but it did fail to comply with the requirements of s.108 HGCR Act and so would be replaced by the Scheme. Bridgway v Tolent (Tolent clauses) disapproved. On the Late Payment of Commercial Debts (Interest) Act, 0.5% above base would not constitute a substantial remedy, so it would be replaced by 8% above the reference rate.
Gideon Scott-Holland

For further information on how our members can assist you, please contact:

Paul Cooklin
Director of Clerking


Nick M. Child
Senior Clerk

Tel: +44 (0)20 7544 2600
Fax: +44 (0)20 7544 2700

The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.

For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44 (0) 20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.


To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.