UK: 2012 Construction Case Law Summary (July - December)

Last Updated: 8 January 2013
Article by Suzanne Reeves

Following on from our case law update covering January – June 2012, a selection of cases which may affect our clients and contacts in the property and construction sectors decided in the second half of 2012 is set out below:

Dangers of letters of intent

Ampleforth Abbey Trust v Turner & Townsend Project Management Ltd [2012] EWHC 2137 (TCC)

Substantial construction works had been carried out entirely under letters of intent which made no provision for liquidated damages for delay. No formal building contract was ever signed. The works were delayed and the Trust claimed against its project managers, claiming that had a fully executed building contract been in place then the Trust would have reached a more favourable outcome in its dispute with the contractor over the delay. The court found that the project manager had failed to take the reasonable steps required to procure the completed building contract and was therefore in breach of contract. The judge noted that the project manager had failed to exercise sufficient focus on the matters holding up execution of the contract or to exert sufficient pressure on the contractor to finalise the contract. This highlights the importance of ensuring that building contracts are signed, rather than simply relying on letters of intent.

Extensions of time and loss and expense

Walter Lilly & Company Limited v Mackay & Anor [2012] EWHC 1773 (TCC)

In this important decision (one of several to be decided between these parties) the court clarified the position in respect of several issues which arise regularly on construction projects. In relation to loss and expense claims, the judge confirmed that the obligation on the Architect/Contract Administrator to "ascertain" loss and expense does not mean that the contractor has to prove its claim "beyond reasonable doubt" instead, the balance of probabilities test applies. The judge also confirmed that it is legitimate for the contractor to bear in mind the knowledge that the Architect/Contract Administrator has of the project when supplying supporting documents for his claim.

The judge also took the opportunity to clarify the position with regards to extensions of time where there are concurrent delays to the works. It was confirmed that (unless there are express contractual terms stating otherwise) where there are two concurrent delays, one which entitles the contractor to an extension of time and one which does not, then there should not be any apportionment between the two delays. The contractor should receive an extension of time for the whole period of the relevant delay.

Public Procurement – beware the limits

Turning Point Ltd v Norfolk County Council [2012] EWHC 2121 (TCC)

The relevant public procurement regulations provide that a bidder who wants to claim for a breach of the public procurement rules by the potential employer must do so within 30 days of the date when the bidder knew (or ought to have known) that grounds for starting the proceedings had arisen. This can result in a difficult choice for bidders to make who may otherwise want to wait to see the outcome of the bid before making a claim (and potentially damaging its relationship with the potential employer). The bidder in this case was barred by the 30 day statutory limitation period. The Court holding that there was no good reason in this case to extend the 30 day period and noting that a good reason "will usually be something which was beyond the control of the given Claimant; it could include significant illness or detention of relevant members of the tendering team."

The judge also made it clear that if an invitation to tender states that no caveats to the terms will be accepted, then the employer can legally reject a bid which does include caveats without clarifying first with the tenderer. Tenderers should therefore carefully check whether the ITT contains a provision preventing qualifications and caveats – and should also keep in mind the 30 day rule.

Tree root damage

Robbins v London Borough of Bexley [2012] EWHC 2257 (TCC)

This case confirmed that damage caused to your property by trees planted by a Local Authority may be recoverable. It highlights the need to notify the Authority as soon as damage is apparent so that the Authority is put on notice, which can prove to be very important in future litigation.

Ad hoc adjudication

Clark Electrical Ltd v JMD Developments (UK) Ltd [2012] EWHC 2627 (TCC)

This case looked at whether a party can accept the adjudicator's jurisdiction by paying the adjudicator's fee up front. Clark had been engaged by JMD to carry out electrical works on a new distillery. A dispute arose and Clark issued a notice of adjudication. The adjudicator's terms required the parties to pay a proportion of his fees on account. JMD were not familiar with adjudication, but paid their share in any event. JMD's advisors then wrote to the adjudicator asserting that the works were not covered by the Construction Act and could not therefore be referred to adjudication. The adjudicator agreed that the works were not covered by the Act, but decided that there was an ad hoc adjudication agreement because of the payment of the fee and continued, his ultimate decision went in Clark's favour. Clark then applied to have the judgment enforced. The Court held however that the payment of the appointment fee by JMD did not amount to a submission to the jurisdiction in the full sense and Clark's claim for summary judgment failed.

Paying the adjudicator if his decision is Unenforceable

PC Harrington Contractors Ltd v Systech International Ltd [2012] EWCA Civ 1371

In what should be a comforting decision for those engaging in adjudication, the Court held that where the adjudicator's decision was unenforceable (in this case because of a breach of the rules of natural justice) then he was not entitled to be paid. The parties bargain with the adjudicator was for an enforceable decision. The Court noted that if adjudicators are concerned by this decision then they should seek to incorporate into their terms a provision covering payment in the event of a decision not being delivered or proving to be unenforceable (if the parties to the adjudication will accept this).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.