UK: Case Law Update 2012 - Issue 5

ADJUDICATION

Berry Piling Systems Ltd v Sheer Projects Ltd [2012] BLM Vol 29 No 3 TCC

Following an adjudication that decided upon entitlement to work done by a sub-contractor, the court rejected the sub-contractor's case that the adjudicator had breached the principles of natural justice because he had referred to a fact which had not been raised with the parties. It was also held that the defendants had failed to make out a case for a stay of enforcement on grounds relating to the financial state of the claimants. As such, the claimants were entitled to enforce the decision of the adjudicator.

R and C Electrical Engineers Ltd v Shaylor Construction Ltd - [2012] CILL 3184 TCC

R & C issued a Part 8 application seeking a declaration for forthwith payment of an amount determined by the Adjudicator. The sum was to be paid when it fell due, pursuant to pay-when-certified provisions in the 'Main Contract'. R & C contended that the provisions in the Main Contract for certification had broken down, so that the condition placed on payment by the Adjudicator was invalid. The court held that there was a difference between circumstances which prevent the contractual machinery being operated and those in which one party refuses to operate it. There was nothing to prevent Shaylor from setting off against the sum found due by the Adjudicator any sum that it would have been entitled to set-off against either the Final Sub-Contract sum or the Final Payment itself.

Highlands and Islands Airports Limited v Shetland Islands Council [2012] BLM Vol 29 No 5 CSOH

In this case, an adjudicator sought informal legal advice from senior counsel in respect of a contractual clause without advising either of the contracting parties. The court held that failure to consult on a point or issue that is either decisive or of considerable potential importance to the outcome of a decision, and not peripheral or irrelevant, amounts to a material breach. The adjudicator's question to counsel was central to the quantification of the largest part of the award and was therefore vitiated by a material breach of natural justice. Further, the dispute which was the subject of that decision was a single issue dispute, and could not be severed from the rest of the decision.

Specialist Insulation Ltd v Pro-Duct (Fife) Ltd - [2012] BLM Vol 29 No 6 CSOH

The central issue in this case was whether the parties had agreed for any dispute to be settled by adjudication. Specialist referred a dispute to adjudication relying on a clause contained in Pro-Ducts's documents, which Pro-Duct disputed on the basis that its own standard terms had not formed part of the contract (an argument not originally run during the adjudication). The court held that Pro-Duct had failed to incorporate its own terms into the contract and as such there was no entitlement to adjudicate. Lord Malcolm agreed with the English Court of Appeal's decision in Tekdata Interconnections Ltd v Amphenol Ltd, that in any battle of the forms-type case what is required is an objective assessment of what the parties must be taken to have intended. The court further rejected Specialist's argument that Pro-Duct had waived its right to challenge the validity of the adjudication by participating in it. Pro-Duct's position had been consistent throughout, even if the legal ground of challenge had changed.

ARBITRATION AND DISPUTE RESOLUTION

Mediation figures show increase

On the up Law Society Gazette 17 May 2012

CEDR's 'Mediation Audit 2012' shows the number of civil and commercial mediations increasing by one third and value by almost a half, over the last 2 years.

The survey covered 238 mediators and there was a separate survey of lawyers. The annual number of mediations is said to have risen from 6,000 to 8,000 in these categories and the value is up 47% from £5.1 billion to £7.5 billion. Annual fee income from mediation is put at £20 million and the settlement rate at 90%.

The market according to CEDR is dominated by about 100 mediators including some 70 lawyers, who are appointed to some 85% of commercial mediations outside of formal schemes.

The most successful mediator reported an average of £8,500 fees per case and an annual workload of 80 cases. The average for experienced mediators is £4,279 per case, up 24% over 2 years.

Newer mediators find it hard to get work, mainly averaging 4 per year, with average fees at £1,517 per case, up 9% over 2 years.

Mealeys International Arbitration Report Vol. 27 Issue 5 May 2012

contains the following articles:

Spanish court denies recognition of Italian title of nobility

by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid

Swings and roundabouts: developments in arbitration in Australia

by AA de Fina

Role of natural justice in making of an additional award

by Darius Chan, Wilmer Cutler Pickering Hale & Dorr, London

The character of international arbitration under the Swiss Ruler, June 2012 Edition

by Philip Landolt, Landolt & Koch, Geneva

Separability and the 'Russian Nesting Dolls" effect: Mortenson v Saunders Concrete

by Colm McInerney, Skadden Arps State Meagher & Flom, New York

SGS: the saga continues (on umbrella clauses in BITs)

by Richard Allen and Ekaterina Finkel

Global Arbitration Review

Vol. 7 Issue 2

contains the following articles:

Children of the revolution

(on the Iran-United States Claims Tribunal)

by Sebastian Perry

Arbitrating's no breeze in Belize

by Alison Ross

The State of arbitration

by Charles Adams, Akin Gump, Geneva

Global Arbitration Review

Vol. 7 Issue 3

contains the following articles:

Greece: a new Argentina?

by Kyriaki Karadelis

A spotlight on Brazil

by Alison Ross

Belle of the ball

by Clare Bolton (on arbitration in Brazil)

ICC Bulletin Vol. 22 No. 2

contains the following articles:

Achieving efficiency in international arbitration: some strategic suggestions for arbitral tribunals in ICC proceedings

by Mads Bryde Anderson, University of Copenhagen, Anders Ryssdal, Wiersholm and Stefan Lindskog, Swedish Supreme Court

Arbitration in Turkey: an analysis of Turkish arbitration legislation in the light of the UNCITRAL Model Law

by Ergun Özsunay, University of Istanbul and Murat

Özsunay

The impact of the EU 'Rome 1' Regulation on international litigation and arbitration, A-National Law, mandatory and overriding rules

by Guido Carducci, University of Paris Est.

Adverse inferences in international arbitration practice

by Simon Greenberg, Clifford Chance, Paris and Felix Lautenschlager

Mealey's International Arbitration Report Vol. 27 Issue

contains the following articles:

Partial annulment due to lack of guarantor's signature and scope of arbitration agreement in a distribution contract

by Calvin Hamilton and Alina Bondarenko, Hamilton, Madrid

Annulment of Swiss International Arbitration Awards for incompatibility with substantive public policy: first annulment in over twenty years

by Phillip Landbolt, Landbolt & Koch, Geneva

You can only smoke 'em if you got 'em: attempts to extinguish the Tobacco BIT claims

by Andy Moody and Cameron Forsaith, Eversheds, London

Analysis of and comments on two cases of pre-arbitration proceedings

by Yanming Yuang, Guangdong International Law Firm

Construction Law Journal

Vol. 28 Issue 1 2012

contains the following articles:

Compliance with and enforceability of a Dispute Board decision: recommendations by the International Beau-Rivage Palace Forum Working Group

by Pierre Genton and Paul Gélinas

Force majeure clauses

by Emma Kratochvilova, Herbert Smith, Tokyo

and Michael Mendelblat, Herbert Smith, London

Construction Act Review:

The new Construction Act:

Life after Part 8 of the LDEDC Act 2011

by Dominic Helps

Consequences of the omission of pre-arbitral mechanisms in Switzerland

by Jean-Pierre Morand and Sophie Roud, Carrard, Lausanne

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

Lim Chin San v LW Infrastructure [2012] Part 1 BLR 1 SGHC

Following the settlement of a dispute between a contractor and subcontractor by arbitration, both parties submitted appeals to the High Court of Singapore. In the first appeal made by LCS, Prakash J upheld principles from English Common Law that time will only be put at large if there are acts of prevention which cause overall delay, and not when there are simply acts of prevention which may disrupt progress, regardless of how extensive or serious they may be. In the second appeal, the judge held that liquidated damages could not be claimed in the post-termination period, but that the termination of the contract did not affect the claim for liquidated damages whichaccrued before the point of termination.

Baht v Masshouse Developments Ltd [2012] BLM Vol 29 No 4 EWHC

The court held, in the context of a contract to develop apartments in a block of flats, that the defendant developers had committed a repudiatory breach of the contract by failing to complete building work 'with all due diligence' because they had delayed by two years in completing the work. As such, the claimant purchasers of the apartments were entitled to recover their deposits previously paid.

Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) [2012] Part 5 BLR 223 WASC

Spiers argued before the Supreme Court of Western Australia for the use of the prevention principle to set time at large, following the decision by the trial judge that it was not entitled to the extension of time for the completion of work, because it had not given notice as required by a term under the contract. The court held (obiter) that the purpose of the relevant contractual term was to prevent the prevention principle from setting time at large. Landtec was not entitled to liquidated damages for the delay period between the actual date of completion and the contractually agreed date of completion, for which Spiers should have been given an extension of time. It was held that the liquidated damages provision in the contract was a penalty and not a genuine pre-estimate of the damages to which Landtec would be entitled.

Cardona and Brownscombe v Brown and Brown [2012] CLJ Vol 28 No 2 VSC

The plaintiffs challenged the decision of the Victorian Civil and Administrative Tribunal (VCAT), on the basis of an error in law, that each stage of construction in a project was separate and that a subsequent progress payment could become payable even though an earlier stage had not been completed. The Supreme Court of Victoria upheld this earlier decision. A claim at a particular stage in a project depends upon whether works are sufficiently progressed to satisfy the definition of that stage, and not whether an earlier defined staged has been reached.

Construction Law Vol. 23 Issue 2

contains the following articles:

Courts still reluctant to imply terms

by Andy Green, Pinsent Masons

Courts back 'rough and ready' view

by Mark Lloyd-Williams and Michael Mendelblat, Herbert Smith

on adjudication

Scottish courts back speedy arbitration

by Shona Frame, MacRoberts

What happens next?

by Nick Warrington, Gateley

on contractor insolvency

Planned early negotiation processes

by Tia Starey, Clyde & Co

Construction Law Vol. 23 Issue 3

contains the following articles:

Adjudicator's decisions and natural justice

by Gurbinder Grewal, SNR Denton

Progress cannot be implied

by Ruth van Dreumel and Andrew Outram, Wragge & Co

Bonds in action

by Fiona Rossetter, Dundas & Wilson

Pay attention to pay less notices

by Kim Teichmann, Thomas Eggar

Misrepresentation minefield

by Paul Morgan and Tristan Thompson, Clyde & Co.

Construction Law Vol. 23 Issue 4

contains the following articles:

The concept of time at large

by Andrew Batty, Pinsent Masons

When advice on the law is not legal advice

by Edward Freeman, Clyde & Co

Construction Law Vol. 23 Issue 6

contains the following articles:

Force majeure – the devil is in the detail

by Ruth Wilkinson, Dundas & Wilson

An appeal to common sense

by Paul Morgan, Clyde & Co

Liability can rest on probable cause

by Michael Mendelblat and Ann Levin, Herbert Smith

Construction Law Vol. 23 Issue 7

August/September 2012

contains the following articles:

When is a mistake a mistake?

by William Cursham, Gateley

(on Daventry DC v Daventry & District Housing) in the CA)

Court advocated mediation

by Alexander Whyatt, Clyde & Co.

Payment for Pre-Contract work

Liability for work done where contract is denied: contractual and restitutionary approaches

by Man Yip, Singapore Management University and Yihan Goh, National University of Singapore

Lloyd's Maritime and Commercial Law Quarterly 2012 Part 2

The article considers how contract and restitution deal with the situation where parties commence work before the conclusion of a formal contract. The authors argue that both contract and unjust enrichment have a role to play. They object to such cases being resolved through implied contracts as artificially interpreting the parties' intentions. They seek to clarify the 'enrichment' and 'unjust' elements of unjust enrichment in restitution.

CONTRACT AND PROCUREMENT LAW

McLaughlin and Harvey Ltd v Department of Finance and Personnel [2012] Part 1 BLR 1 NICA

The Northern Ireland Court of Appeal, in proceedings linked with the Henry Brothers decision reported on the same day, dismissed both grounds in the Department's appeal against the setting aside of the framework agreement by the trial judge. First, the NICA declined to disturb the judge's decision that the Department's failure to disclose topics and weightings attached to them could have affected the preparation of its tender. It found that the application of the tests in ATI v ACTV Venetzia was a matter of fact for the national court, and that there was nothing to refer to the ECJ. Second, the NICA dismissed the Department's jurisdictional challenge to the setting aside of the framework agreement as a remedy adopted by the trial judge.

Construction Law Vol. 23 Issue 2

contains the following articles:

Skip over insurance at your peril

by Michael Phipps, Thurston Consultants

on retention bonds in JCT With Quantities 2011

Procurement for growth and savings

by David Mosey, Trowers & Hamlins

Whose employee?

by John Wright, JD Risk Associates

Construction Law Vol. 23 Issue 3

contains the following articles:

User-centred contracts needed

by Michael Phipps, Thurston Consultants

on JCT With Quantities 2011

NEC 3 and Option X12

by Vijay Bange, Trowers & Hamlins

Construction Law Vol. 23 Issue 4

contains the following articles:

Name that specialist

by Michael Phipps, Thurston Consultants

on JCT's new Named Specialist Update

Project Bank Accounts

by Christopher Pedder, Pinsent Masons

Public procurement challenges

by Lindy Patterson QC, Dundas & Wilson

FIDIC provision might be no alternative

by Estelle Katsimani and Michael Mendelblat, Herbert Smith

on FIDIC sub-contract and ICC Rules on multi-party arbitrations

Insurance policies not fit for purpose

by Peter Stockill, Berrymans Lace Mawer

Risk financing and management

by John Wright, JD Risk Associates

Construction Law Vol. 23 Issue 5

contains the following articles:

Expect more specialist updates

by Michael Phipps, Thurston Consultants

(not Michael Furmston, as the journal has it)

on JCT Named Specialist Update

Project insurance not for the small projects

by John Wright, JD Risk Associates

Construction Law Vol. 23 Issue 6

contains the following articles:

Beware of imitations

by Michael Phipps, Thurston Consultants

on the JCT Named Specialist Update

Courts main drivers on public procurement

by Christopher Pedder and Angela Fletcher, Trowers & Hamlins

Contracts getting ready for BIM

by Shona Frame, MacRoberts

Consider your exit strategy

by Akin Akinbode, SNR Denton

Design and build insurance cover

by John Wright, JD Risk Associates

Construction Law Vol. 23 Issue 7

August/September 2012

contains the following articles:

Care needed with termination

by Michael Phipps, Thurston Consultants on JCT With Contractor's Design termination provisions

How secure is your security?

by Jane Miles, SNR Denton

UK Bribery Act – one year on

by Val Surgenor, MacRoberts

Avoiding unintentional pitfalls

by Will Buckby and Andrew Croft, Beale & Co

on letters of intent

Asbestosis liability clarified

by John Wright, JD Risk Associates

Brighter later for smaller firms

by Will Cooper, Clyde & Co

Construction Law Journal Vol. 28 No. 2 2012

contains the following articles:

The evolving reality of tendering contracts – some Commonwealth comparisons

by David Percy QC, University of Alberta

Islamic Finance and Construction – is there a place for one in the other?

by Dina Elshurafa, White & Case, London

Key changes to the Irish Public Works Contracts

By Karen Killoran, Arthur Cox, Dublin

GENERAL AND PROFESSIONAL NEGLIGENCE

United Marine Aggregates Ltd v GM Welding & Engineering Ltd [2012] BLM Vol 29 No 5 TCC

In this case, United Marine sought to hold GM Welding liable in negligence for a serious fire that took place at its plant. The court held that the duty of care owed to United Marine was to use reasonable care and to take certain specified precautions. Ramsey J stated that the concept of reasonable care was not an absolute standard that existed independently of its context. The court must consider what is reasonable as between the parties in the context of a particular operation.

Lawrence v Fen Tigers Ltd [2012] BLM Vol. 29 No.2 CA

The Court of Appeal held that noise created by car racing on the defendant's land did not amount to nuisance. Car racing was an established part of the locality, and there was no evidence to support the proposition that the defendants had failed to comply with the terms set out in the planning permission on which racing could be held.

Barr v Biffa Waste Services Ltd [2012] BLM Vol. 29 No. 4 CA

This decision was reported in [2011] 137 Con LR 125 and noted in Issue 3. The nuisance claim by local residents against operators of a landfill site was dismissed by Coulson J, since the operators were operating within the detailed terms of their permit and without negligence. Despite the odours emanating, the use of the site amounted to a reasonable user and not a nuisance, although statutory authority could not be relied on. The most interesting element of the decision may be the role of negligence in establishing nuisance: the BLM Editors note that "The finding that negligence is a necessary ingredient of these claims may prove to be controversial given that the relationship between negligence and nuisance has proved to be a vexed one".

PRACTICE AND PROCEDURE

Citation of authorities

Practice Direction: Citation of Authorities was issued by the Lord Chief Justice on 28 March 2012 to clarify practice and procedure for citation of authorities in Senior Courts of England Wales.

It contains confirmation of the hierarchy of reports, with the Official Law Reports at the top of the list and also details of the photocopies/electronic versions of cases to be supplied when cited.

CA Mediation Scheme

The CA Mediation Scheme has a new pilot project managed by CEDR. It applies to all personal injury and contract claims up to £100,000 and will involve an automatic recommendation to mediation unless a judge exceptionally directs otherwise. A panel of accredited mediators will be nominated by CEDR.

Walter Lilly & Co Ltd v Mackay and another [2012] Part 5 BLR 249 TCC

Proceedings brought against the defendants, arising from a substantial delay in the completion of work, resulted in a trial in March 2012. On the first day of trial, WLC applied for the disclosure of all correspondence and documents created by a firm of claims consultants that the defendants claimed was subject to legal professional privilege. Akenhead J granted their disclosure, holding that legal professional privilege only applied in relation to qualified lawyers, and that the claims consultants had been retained to provide contractual and adjudication advice, and as such were not providing a service as qualified lawyers.

Withdrawal of admission

Northern Rock (Asset Management) plc v Chancellors Associates Ltd [2012] TCLR 1 TCC

The defendant valuers' representative mistakenly ticked the box 'Defendant admits this claim' in acknowledging service in a negligent valuation case. The TCC Registry stamped the claim 'Judgment for Claimant in default' without it going to a judge. The valuers succeeded in having the irregular judgment set aside and the mistaken admission withdrawn, despite the claimant's argument that the court had no such jurisdiction. The TCC held that it could do so under CPR Part 3.1 (z)(m) where just and reasonable.

Costs estimate exceeded

Minkin v Cawdery Kaye Fireman & Taylor [2012] EWCA Civ. 546 CA

The CA overturned the finding of the High Court that a client had been entitled to withhold payment of a solicitor's bill of costs because it exceeded the original estimate by a wide margin. The CA emphasised the fact that the solicitors terms of business sent to the client made clear that estimates were not fixed or binding and refusal to pay was not justified. The appeal was allowed.

ACD (Landscape Architects) Limited v (1) Robert Overall (2) Cookham Construction Limited [2012] CILL 3145 TCC

The court held that an expert report was not privileged if its contents were extensively referred to in a witness statement used as evidence in an application to amend a defence and counterclaim prior to a strike out hearing. In these circumstances, the expert report had been 'deployed', meaning that privilege was waived and the report was discloseable. It was also held that an adjournment of the strike out application hearing was appropriate, to allow

ACD to have sufficient time to consider its contents.

Inframatrix Investments Limited v Dean Construction Limited [2012]CILL 3145 CA

The court, at first instance, rejected Inframatrix's claim for breach of contract as a result of poor workmanship in work carried out on its factory, on the basis that it was defended by a contractual limitation clause which time barred proceedings after the expiry of one year after the provision of services. The Court of Appeal upheld this decision, rejecting submissions that the clause only applied where the practical completion of services was never going to be achieved and that DCL should not be entitled to a contractual construction that would enable it to benefit from its own wrong. It was held that proceedings were therefore time-barred, and that an on-site meeting, and the inspection and production of a report, did not qualify as services within the meaning of services in the contractual clause.

West African Gas Pipeline Company Limited v Willbros Global Holdings Inc [2012] CILL 3152 TCC

WAPCo brought proceedings against WGH seeking recovery for money under a guarantee, following the termination of an EPC contract with its EPC Contractor, and the use of other contractors in the construction of an oil pipeline in West Africa. The court held that WGH was entitled to a wasted costs order for WAPCO's piecemeal and deficient disclosure of documents. WGH was entitled to recover the costs of its second application for disclosure, as well as a high percentage of its costs in attempting to resolve WAPCO's poor disclosure. The court, however, refused to vary costs, which were made costs in the case, relating to an earlier disclosure application.

Newman v Framewood Manor Management C Ltd [2012] BLM Vol 29 No 3 CA

The Court of Appeal held that the claimant under a 999 year lease was entitled to claim damages for loss of amenity arising from the breaches of covenants relating to her apartment. The Court rejected the defendant's reliance on an exoneration clause in a contract between the two parties.

Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] BLM Vol 29 No 3 EWHC

The claimants appealed to the High Court under s69 of the Arbitration Act 1996 arguing that a settlement agreement was voidable on the ground that it had been entered into as a result of the application of economic duress. Mr Justice Cooke, in deciding upon the meaning of 'illegitimate pressure' in an economic duress claim, affirmed that conduct which is not unlawful, can amount to illegitimate pressure, though that would be unusual. He also held that both a past unlawful act, and the threat of a future unlawful act, can amount to illegitimate pressure in certain circumstances.

Samarenko v Dawn Hill House Ltd [2012] BLM Vol 29 No 4 April 2012 CA

The claimant sought a declaration that the contract for the sale of land between the parties had been validly terminated after the defendant had failed to pay a deposit within a prescribed time frame. The Court of Appeal held that the breach of a contractual obligation to pay a deposit by a particular time in the sale of land amounts to a repudiatory breach of contract. However, it was held that the same is not true of a failure to comply with a time of essence notice.

Golden Ocean Group Ltd v (1) Salgaocar Mining Industries Private Ltd (2) Mr Anvil V Salgocar [2012] CILL 3161 CA

In dismissing an appeal against the decision of the Commercial Court, the Court of Appeal held that a contract of guarantee is enforceable when contained, not in a single document, but in a series of linked email documents. The Court of Appeal also established that there was a good arguable case that the electronic signature by the chartering broker on one of the emails was sufficient to authenticate the guarantee under the Statute of Frauds 1677.

M3 Property Ltd v ZedHomes Ltd [2012] CILL 3174 TCC

In proceedings related to M3's claim for outstanding consultancy fees from Zed, M3 requested an order that an independent expert should be authorised to inspect all computer servers and back up servers used by Zed in the period from April 2007 to January 2011. Mr Justice Akenhead held that the court would not grant the order, under CPR Part 25.1, because it was not necessary or proportionate.

Higginson Securities (Developments) Ltd v Hodson [2012] CILL 3177 TCC

The Pre-Action Protocol for Construction and Engineering Disputes did not state that it was a mandatory provision for parties to hold a without prejudice meeting prior to the commencement of proceedings. In the instant case, it had been unnecessary for the defendant to apply for a stay of the claimant's proceedings in order to enable such a meeting to occur.

Jet2.com v Blackpool Airport Ltd - February [2012] CILL 3165; [2012] BLM Vol. 29 No. 4 CA

This decision was reported in [2011] BLM Vol. 28 No. 9 and noted in Issue 1. The court confirmed that there was no difference in meaning between contractual obligations to use 'best endeavours' and 'all reasonable endeavours'. The context was an agreement to promote an airline's low cost flights. However, the judge emphasised that, while they were the same in this contract, a different context could lead to a different interpretation.

The Commercial Litigation Journal No. 43 May/June 2012

contains the following articles:

Confidentiality: shadow boxing

(on Amp v Persons Unknown)

by Martin Meredith, Commercial Chambers

Services: staying in touch

(on service outside the jurisdiction)

by Andrew Emery, Malins Chambers

Privilege: Noah and the Flood

(on Flood v Times Newspapers)

by Phil Sherrell, Luke Arbuthnot and Astrid O'Reilly, Bird & Bird

Contract: Light work

(on Kingspan v Borealis – misrep. in supply contract)

by Anthony Greenwood and Leanna Mailer, Kennedys

Out of court (on Civil Restraint Orders on litigants in person)

by Greg Standing and Ian Weatherall, Wragge & Co

The cost of everything

(on third party funding)

by Nick Rowles-Davies, Vannin Capital

Doing your duty

(on GHLM Trading v Maroo – corporate governance)

by Alexander Fox and Clare Arthurs, Manches

Paper chase

(on document retention)

by Nicola Bridge, Joel Seager and Guy Francis, SJ Berwin

KEATING CHAMBERS REPORTED CASES

WW Gear Construction Ltd v McGee Group Ltd [2012] CILL 3204 TCC

During the course of an on-going adjudication between the parties, Gear Construction brought Part 8 proceedings seeking a declaration as to the meaning of a clause in the amended form of the JCT Trade Contract. By virtue of CPR 40.20, the court's power to grant a declaration was very wide and unfettered. However, it was settled law that there were obvious practical difficulties in permitting an application during an on-going adjudication. It would not be appropriate to make a declaration in this case as it would result in an unacceptable imposition on an adjudicator and one that would result in unfairness, misunderstandings or mistakes. The circumstances in which a court may consider granting a declaration are where both parties had agreed that the court should do so, with a view to assisting the adjudicator, and had also agreed to extend the adjudicator's time for making the decision in order to accommodate any determination by the court.

Gaynor Chambers Sarah Hannaford QC

Natas Group Ltd (in administration) v Styles & Wood Ltd [2012] 142 Con LR 179 TCC

This decision concerned a security for costs application made by the defendant. The claimant argued that the court's discretion to award security for costs should not be exercised, due to the availability of an ATE insurance policy taken out to cover any liability for costs. Akenhead J held hat there were genuine concerns and uncertainities relating to ATE insurance. It did not provide anywhere near as good or as certain cover as a payment into court or a bank guarantee, which are the more usual ways of providing security for costs. The defendant's application for security for costs succeeded.

Jonathan Selby

Lanes Group v Galliford Try [2012] BLM Vol. 29 No. 2 EWHC

This decision was reported in [2012] BLR 121.Galliford successfully appealed against the first instance finding of apparent bias against the adjudicator, the court using the same test for bias in adjudicators as for judges applying AMEC Capital Projects v White Friars (Stephen Furst QC and Jane Lemon and David Thomas QC) Lanes' appeals against the finding that the adjudicator had jurisdiction were unsuccessful.

John Marrin QC

Sprunt Ltd v London Borough of Camden [2012] BLM Vol. 29 No. 2 TCC

This decision was reported in [2012] CILL 3124. Building consultant Sprunt entered into a framework agreement with Camden LBC by which it provided consultancy services as architect. The dispute resolution provisions of the agreement enabled either party to refer disputes to arbitration, but identified Camden as the adjudicator nominating body. Sprunt referred a dispute instead to the RICS and Camden sought to resist enforcement of the decision on two grounds: absence of a contract in writing for (the old) s.107 purposes and absence of entitlement of Sprunt to refer a dispute to RICS. The court found in favour of Sprunt on both grounds. Sprunt's letter with an amended (reduced) fee proposal accepted by Camden expressly incorporated the terms of the framework agreement and was therefore an agreement in writing. The provision for a party to be the adjudicator-nominating body offended against s.108 and against policy. The Scheme would therefore apply, under which a reference to RICS was an appropriate nomination.

Justin Mort

Carillion Construction Ltd v Stephen Andrew Smith [2012] BLM Vol. 29 No. 2 TCC

This decision was reported in [2011] CILL 3097 TCC. Mr Smith, the claimant, had commenced a third adjudication under his own name, after his company, the sub-contractor, had attempted to recover loss and expense from Carillion, the main contractor, in two previous adjudications. Carillion objected to the third adjudicator's jurisdiction and obtained a declaration that the dispute in the third adjudication was sufficiently similar to that in the second to constitute the same dispute, despite the existence of additional material and argument not available in the second adjudication. The court considered Quietfield v Vascroft (Abdul Jinadu) and Benfield v Trudson (Hatton) (Piers Stansfield).

Simon Hargreaves QC

William Webb

Leander Construction Ltd v Mulalley and Co. Ltd [2012] CILL 3151 TCC

This decision was reported in [2012] BLR 152. Contractor Mulalley failed to demonstrate the need for the implication of a term as to regular and diligent progress as a matter of business efficacy. The withholding notices served on sub-contractor Leander were based on alleged failure to comply with the activity schedule.

Richard Coplin

Herbosch-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] CILL 3148; [2012] BLM Vol. 29 No. 3 TCC

This decision was reported in [2012] BLR 177. Enforcement of the adjudicator's decision was refused because the adjudicator had exceeded his jurisdiction by finding and addressing a method of assessment which formed no part of the dispute referred to him. The dispute between the employer, the Board, and the specialist marine contractor, HKM, concerned the removal of a wreck from the entrance to Dover Harbour. The adjudication was conducted under the ICE Rules.

Samuel Townend

Jessica Stephen

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.

This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb FRICS Barrister) Visiting Professor of Law, Oxford Brookes University.

www.keatingchambers.com

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Mondaq.com (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 www.mondaq.com

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 Mondaq.com’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.

Disclaimer

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.

Registration

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 unsubscribe@mondaq.com 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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Security

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 webmaster@mondaq.com.

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 EditorialAdvisor@mondaq.com.

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 enquiries@mondaq.com.

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