UK: Construction, Property & Real Estate (Case Law Review, Issue 2 – February 2007)

Last Updated: 15 March 2007

We are pleased to announce that Miss Krista Lee has joined Keating Chambers in February 2007. Miss Lee was called to the Bar in 1996 and she specialises in construction, company, insolvency law and other commercial litigation.

ADJUDICATION

Settlement not a construction contract

Melville Dundas Ltd v Hotel Corporation of Edinburgh Ltd [2006] BLR 474 Court of Session Outer House
A settlement agreement was reached by which the value of the final account was agreed with the retention adjusted and a list of defects to be remedied by the contractor. The Outer House held that this was not a construction contract for the purposes of s.111 of the HGCR Act.

The case also includes important discussion of the extent to which rights of set-off can be excluded by express provision and whether they can be excluded by implication.

Agreement in writing in deed

Lead Technical Services Ltd v CMS Medical Ltd [2007] All ER (D) 270 CA
The Court of Appeal allowed the defendant client’s appeal against summary judgment enforcing an adjudicator’s decision in favour of the claimant engineers. The judge had agreed with the adjudicator in finding a deed entered into between the parties as fatally flawed, but the CA held that there was a real prospect of proving that the parties’ agreement was contained within the deed for s.107 purposes and so summary judgment should not have been granted.

See Quietfield v Vascroft under Keating Chambers Reported Cases on failure to consider new evidence in subsequent adjudication.

See McConnell Dowell Constructors (Aust) v National Grid Gas Plc under Keating Chambers Reported Cases on adjudicator’s jurisdiction over supplemental agreement.

See Nageh v Richard Giddings under Keating Chambers Reported Cases on claims to be unaware of adjudication proceedings as a ground for resisting enforcement.

See Epping Electrical v Briggs & Forrester under Keating Chambers Reported Cases on effect of adjudication time-limits which are non-HGCR Act compliant.

See HG Construction v Ashwell Homes under Keating Chambers Reported Cases on the binding effect of an earlier adjudication on a dispute referred to a subsequent adjudication.

See Multiplex Constructions v Mott MacDonald under Keating Chambers Reported Cases on an adjudicator’s entitlement to determine the meaning of "pertinent records".

See Aveat Heating & Jerram Falkus Construction under Keating Chambers Reported Cases on implication of scheme provisions where contract time-limits were non-HGCR Act compliant.

See Cubbitt Building & Interiors v Fleetglade under Keating Chambers Reported Cases on deadline for issue of adjudicator’s decision.

ARBITRATION AND DISPUTE RESOLUTION

International Arbitration Law Review Vol. 9 Issue 6 December 2006 contains the following articles:

Necessity knows no law!’: LG&E v Argentina
by David Foster, Watson Farley & Williams, London

Impartiality of arbitrators: English and Irish law contrasted
by Gearóid Carey, Matheson Ormsby Prentice, Dublin and Norah Gallagher, Herbert Smith, London

China: The Supreme People’s Court’s new interpretation on the application of PRC arbitration law
by Lillian Lian and Stewart Shackleton

Reconciling the public interest: third-party participation, confidentiality and privacy in NAFTA Chapter II arbitrations
by Asha Kaushal, Appleton & Associates, Toronto

The China-style ‘Commission-oriented’ competence on arbitral jurisdiction: analysis of Chinese adaptation into globalisation
by Weixia Gu and Xianchu Zhang, University of Hong Kong

Arbitration International 2006 Vol. 22 No. 4 contains the following articles:

The proliferation of disputes, dispute settlement procedures and respect for the rule of law
by Judge Thomas Buergenthal, International Court of Justice

Evidentiary privileges: best practice standards versus/and arbitral discretion
by Klaus Peter Berger, University of Cologne

Defining investment and investor: who is entitled to claim?
by Barton Legum, Debevoise Plimpton, Paris

International investment treaty protection of NGOs
by Nick Gallus, Appleton and Luke Peterson

Drawing adverse inferences from the non-production of evidence
by Jeremy Sharpe, White & Case, Washington DC

The Spanish application of the UNCITRAL Model Law on International Commercial Arbitration
by David Cairns, B Cremades y Asociados, Madrid

Dealing with Pandora: the concept of ‘merits’ in international commercial arbitration
by Veijo Heiskanen, Lalive, Geneva

Limitation periods for the enforcement of arbitral awards in Nigeria
by Adebayo Adaralegbe, Babalakin & Co, Nigeria

Global Arbitration Review Vol. 1 Issue 6 December 2006 contains the following articles:

Stockholm comes in from the cold
(on the Stockholm Chamber of Commerce Arbitration Institute)

Sweden’s arbitration powers:

The SCC’s new rules
by Kaj Hober and William McKenzie, Mannheimer Swartling

Partiality and issue conflicts
by Matt Gearing and Anthony Sinclair, Allen & Overy

Challenges: theirs is to reason why
By Lord Hacking, Littleton Chambers (on reasons for challenges to arbitral appointments)

Indian arbitration at a crossroads
by Aloke Ray and Dipen Sabharwal, White & Case

Investment rights in Southeast Asia: ASEAN arbitration
by Barry Garfinkel and Timothy Nelson, Skadden Arps, New York

Finance agreements: a practical approach to options to arbitrate
by Philip Clifford and Oliver Browne, Latham & Watkins, London

International Construction Law Review Vol. 24 Part 1 January 2007 contains the following articles:

Appealing arbitrators’ decisions – the Nema guidelines revisited
by Henry Suen and Sai On Cheung, City University, Hong Kong

The rise and rise of ‘time-bar’ clauses: the ‘real issue’ for construction arbitrators
by Hamish Lal, Dundas & Wilson, London

Arbitration Law Monthly Vol. 7 No. 2 February 2007 contains the following articles:

Appeals against arbitration awards on Bulk Trading v Moeller (costs of the appeal).

Appeal on point of law on CGU International Insurance v AstraZeneca Insurance (permission to appeal to the Court of Appeal).

Serious irregularity on ASM Shipping of India v TTMI of England (a permission to appeal to the Court of Appeal).

Adjudication Jurisdiction: writing and timing on Hart Investments v Fidler (requirement of writing under HGCR Act).

Arbitration Vol. 73 No. 1 February 2007
Note that this journal, the official publication of the Chartered Institute of Arbitrators has been given a new (significant) sub-title:

The International Journal of Arbitration, Mediation and Dispute Management

Articles (special Mediation Issue):

Mediation and its future prospects
by Sir Brian Neill

From private mediation to public engagement
by Andrew Acland

Commercial mediation: the impact of the courts
by David Cornes

The role of the mediation advocate: a user’s guide to mediation
by Craig Pollack, SJ Berwin

Judges as mediators: retaining neutrality and avoiding the trap of social engineering
by Steven Certilman

The role of arbitrators and arbitration institutions in the use of alternatives for the settlement of disputes
by Philip Naughton QC, 3 Serjeant’s Inn

Evaluative mediation
By David Richbell

The ‘Everywhen Mediator’: the virtues of inconsistency and paradox: the strengths, skills, attributes and behaviour of excellent and effective mediators
by Amanda Bucklow

The pursuit of harmony: the art of mediating, the art of singing
by Mercedes Tarrazon

From mediation to settlement and from settlement to final offer arbitration: an analysis of transnational business dispute mediation
by Mordehai Mironi, University of Haifa

The European Directive scuppered
by Michel Kallipetis QC

An Australian perspective on some topical issues in mediation
by Alan Limbury

Overview of ADR in Nigeria
by Paul Obo Idornigie, Nigerian Law School

Reflections on commercial mediation in Scotland
by John Sturrock

Some insights into mediation in Central and Eastern Europe
by Bill Marsh

A note on ADR in Colombia
by Philip Naughton QC, 3 Serjeant’s Inn

ADR possibilities in investor-state disputes
by Harris Bor, Brick Court Chambers

The myth of modern mediation
by Derek Roebuck, University of London

The Turkish peacemaker
by Sarah Rainsford, BBC

Journal of International Arbitration Vol. 24 No. 1 February 2007 contains the following articles:

Reflections on transnational public policy
by Michael Pryles, Clayton Utz

The ‘public policy’ exception to enforcement of international arbitration awards under the New York Convention – with particular reference to construction disputes
By Troy Harris, King & Spalding, Atlanta

Non-recognition of ‘Kompetenz-Kompetenz’ in developing countries – the Venezualan example
by Hernando Diaz-Candia, Squire Sanders & Dempsey, Venezuela

Use of the UNCITRAL Arbitration Rules at arbitral institutions by arbitral institutions – the case of Malaysia
by Dato Syed Ahmad, Idid

The reform of the Italian Arbitration Law
by Daniele Cutolo and Antonio Esposito, Cutolo Esposito, Naples

CONSTRUCTION AND ENGINEERING CONTRACT LAW

Tender contract

J&A Developments Ltd v Edina Manufacturing [2007] CILL 2417 QBD (NI)
This case confirms, applying Blackpool and Fylde Aero Club v Blackpool Borough Council, that a tender contract is a collateral contract between tenderers and employer. Here the employer had breached the contract, which had incorporated the Code of Procedure for a Single Stage Selective Tendering, by inviting three tenderers in and requesting them to reduce their prices. The successful action was brought by one of the tenderers, which refused to reduce its price, and the measure of damages was held to be the cost of tendering plus loss of profit.

Construction Law Vol. 18 Issue 1 January 2007 contains the following articles:

Still a whiff of centuries past (on JCT 2005)
by Michael Phipps, Thurston Consultants

Shifting sand – the FIDIC dredging contract
by Tim McGoldrick, DriverConsult

Use of FIDIC in water projects: 10 key points
by Sarah Thomas, Pinsent Masons

Courts take pragmatic approach to termination
by Richard Dyton, Simmons & Simmons

Getting your compensation
by Paul Newman, 3 Paper Buildings

Professional indemnity insurance – mind the gaps
by John D. Wright, JD Risk Associates

CIS – a brave new world for 2007
by Olivia Blessington and Karen Westman, Shadbolts

International Construction Law Review Vol. 24 Part 1 January 2007 contains the following articles:

Queensland’s ECI Contract
by Roger Quick, Gadens, Brisbane

Scope for improvement – a survey of pressure points in Australian construction and infrastructure projects
by Bill Smith, Blake Dawson Waldron, Sydney

Canada’s ‘Contract A’ tested by design-build team members
by Donald Marston, Toronto

Proportionate liability – reform or regression?
by Doug Jones, Clayton Utz, Sydney

EOT and Determination

Reinwood Ltd v Brown & Sons Ltd [2006] CILL 2413 TCC
On the question of extension of time under JCT 98 with Contractors Design, it was held that no particular formality was necessary for grant of an extension of time, provided the document contained the information required by the contract. If a new completion date was fixed, thus cancelling a certificate of non-completion, the right to deduct LADs under that certificate was lost.

The court also offered guidance in the form of six propositions as to whether the contractor’s notice of determination was given unreasonably or vexatiously:

  1. The burden would be on the employer to show that it was, on the balance of probabilities.
  2. ‘Vexatiously’ means with the ulterior motive or purpose of oppressing, harassing or annoying the employer.
  3. The test is how a reasonable contractor would have acted in all the circumstances.
  4. The court should not substitute its own view of what is reasonable for that of the reasonable contractor.
  5. The test for unreasonable conduct is objective, although the contractor’s purpose could be relevant.
  6. The effect on the employer is a relevant factor in assessing reasonableness.

Agreement to agree denied

Bell Scaffolding (Aust) Pty Ltd v Rekon Ltd [2006] CILL 2405 [2007] BLM Vol.24 No.2 TCC
The court rejected an argument that there was no enforceable contract because there was only an agreement to agree. The phrase used by the parties ‘at agreed prices’ did not mean ‘price to be agreed’ and so it could not be argued that there was uncertainty or an absence of the essential element of price. There had been ‘agreed prices’ in the past and these would prevail in the current agreement, which would be enforced.

Insurance of natural risks

CA Blackwell (Contracts) Ltd v Gerling Allgemeine Versicherungs [2007] EWHC 94 LAWTEL Commercial Court
The claimant contractor succeeded in its action for payment under its Contractors All Risk insurance policy, following damage to the earthworks on a motorway project caused by heavy rain. The insurers unsuccessfully argued that there was no degree of fortuity, in that the rain, while heavy, was not exceptional and that the contractors were guilty of wilful misconduct in the precautions taken. The court held that the combination of heavy rain with other factors was not inevitable and so was fortuitous and that, while there may have been a degree of neglect by the contractors, it did not amount to wilful misconduct.

See Multiplex Constructions v Cleveland Bridge under Keating Chambers Reported Cases on whether temporary roof works were covered by a lump sum agreement for remaining works.

See P4 Ltd v Unite Integrated Solutions under Keating Chambers Reported Cases on alleged conversion of materials and the meaning of ‘disposition’.

GENERAL AND PROFESSIONAL NEGLIGENCE

Abatement of tree root nuisance

Perrin and Ramage v Northampton Borough Council [2006] BLR 504 TCC
The TCC granted the claimants’ application for a declaration that their neighbours’ oak tree was causing a nuisance in the form of root damage to their house and that it was therefore ‘necessary’ to cut down the tree to abate the nuisance, within the meaning of the Town and Country Planning Act 1990. The Council had argued that, as the tree was protected by a Tree Preservation Order, it should not be cut down, since the claimants could undertake underpinning works at their own expense as an equally effective way of abating the nuisance.

Contractor-Subcontractor Duty of Care

Gray v Fire Alarm Fabrication Services [2006] BLM Vol. 24 No. 1 CA
The Court of Appeal allowed an appeal by the defendant main contractors, holding that they had not, on the facts, breached the duty of care they owed to the employee of a sub-contractor who had been killed in an accident. The main contractors were found not to have failed in their duty to supervise work to ensure that it was done safely and did not actually know of the sub-contractor’s intention as to its methods. There were also findings concerning the hotel company, as occupiers of the premises where the work was carried out.

Vicarious liability for contractors

Sweeney & Boylan Nominees Pty [2006] BLM Vol. 24 No. 1 High Court of Australia
Already reported in BLR and noted in KC In Brief January 2007. Mrs. Sweeney, the appellant, was injured when a fridge door in a service station came off its hinges and hit her head. The mechanic who had negligently tried to repair the door was an independent contractor, not an employee of the respondent company. On this ground, the High Court of Australia (by a 5-1 majority) upheld the NSW Court of Appeal decision in favour of the respondent company. The court upheld the distinction between employees and independent contractors in finding that the company was not vicariously liable for the negligence of an independent contractor.

Rights to light injunction

Regan v Paul Properties [2006] EWCA Civ 1319 [2006] WLR 1131 [2006] CILL 2411 CA
The appellant was the owner of a long leasehold of a maisonette. The erection of a multi-storey building substantially reduced the light coming into his living room. He established at first instance that this constituted an actionable nuisance but was awarded damages in lieu of the injunction he sought. Reversing the decision not to grant an injunction, the CA reaffirmed and applied the test in Shelfer v City of London Electric Lighting. It held that the judge at first instance had been wrong in placing the onus on the appellant to show that damages should not be awarded and in not considering the significance of the parties’ conduct. The CA viewed the respondents’ decision to press on with the building works despite the appellant’s complaint as a calculated risk, which could not deprive the appellant of appropriate injunctive relief.

PRACTICE AND PROCEDURE

Apportionment of brief fees

Miller v Hales [2006] All ER(D) 67
In a case where the claimant was successful, he only got part of his costs because of costs thrown away. The judge apportioned the brief fees, noting that "it is today appropriate to take a realistic and practical approach rather than to apply rigidly the old rule that a brief fee becomes payable on the delivery of the brief". The rationalisation appears to be that under the CPR much of counsel’s work is paperwork, so gaps in diaries are relatively easy to fill, whereas in earlier times they were financially much more damaging.

Experts: without prejudice

Aird v Prime Meridian Ltd [2006] BLR 494 TCC [2006] All ER (D) 358 CA
The contractors had unsuccessfully applied for a declaration that the claimant employer should not be allowed to amend its pleadings in a way inconsistent with the views expressed by the employer’s architect’s expert. The respective experts had been ordered to meet without prejudice and the action was stayed pending mediation. The judge was not clear that privilege had been waived and so the expert’s statement was a privileged document, even though normally an expert’s statement could be referred to, even when used for mediation.

In the CA, the defendant’s appeal was allowed. A joint statement under CPR 35.12 did not bind the parties and was not an admission. It was not privileged. The court could neither order a party to mediate nor order the parties to produce a privileged statement. The CPR 35.12 joint statement could not acquire privilege by being used in the mediation.

See McGlinn v Waltham Contractors (No. 2) under Keating Chambers Reported Cases on the criteria for allowing evidence to be given by video link.

Meaning of ‘redevelopment’ for lease extension

Majorstake Ltd v Monty Curtis [2006] BLR 461 CA
By a majority, the Court of Appeal allowed an appeal by the landlords of a St. John’s Wood block of flats, on the ground that it intended to redevelop, whereas the tenant sought to extend this lease under the Leasehold Reform Housing and Urban Development Act 1993. The majority of the CA held that the landlords only needed to show that they intended to develop the building in which the tenant’s flat was located, not the flat itself.

Third party rights

Avraamides v Colwill [2006] Times Law Reports 8 December and [2007] BLM Vol. 24 No. 2 CA
This is important as a (still) relatively rare reported decision on the Contracts (Rights of Third Parties) Act 1999 and, moreover, one which is related to construction work. The question was the entitlement of claimants to be treated as third parties under the Act, but the CA held that, under s.1(3) of the Act, the third party has to be identified in the contract by name, as a member of a class or as answering a particular description, conditions which were not satisfied here, so that the agreement did not identify any third parties capable of benefiting from contractual rights under the Act.

The Commercial Litigation Journal No. 10 November/December 2006 contains the following articles:

Case management: communicating risk – words or numbers?
by Jane Ching, Nottingham Law School

Litigation and PR: the dangers of bad press
by Clare Rodway, Kysen PR

Jurisdiction: communication breakdown
by Edwin Cheyney, Middleton Potts

Admissions: taking back what you’ve said
by Tim Strong and Lydia Hassall, Barlow Lyde & Gilbert

Privacy: the business of keeping secrets
by Andrew Hearn and Jonathan Scherbert-Ball, Dechert

ICT usage and investigation: the enemy within
by Edward Wilding, Data Genetics International

Extradition: a one-way street
by Jonathan Pickworth, DLA Piper

Amendments to particulars of claim

Charles Church Developments v Stent Foundations [2006] CILL 2408 TCC

In an action relating to damage caused by neighbouring properties by piling works, arguments were raised as to whether subsequent incidents connected with remedial work would raise new causes of action. The limitation period being about to expire, Charles Church had served the claim without following the pre-action protocol. They now sought leave to amend to deal with responsibility for the subsequent incidents. The defendants resisted this as raising new causes of action. The TCC considered the factors for and against allowing amendment of pleadings before holding that the balance in this case favoured allowing amendment. The defendants could be compensated in costs for the claimants’ failure to comply with the pre-action protocol.

Staff costs as damages

Aerospace Publishing Ltd v Thames Water Utilities Ltd [2007] TLR Jan 22 CA

As a general principle, where a claimant can show that its staff were diverted from their normal activities to deal with the consequences of a tortious act, disrupting the claimant’s business, the court would normally accept that damages should include the loss of the revenue they would have generated, at least to the cost of employing them for the non-productive period. This would apply unless the defendant could show the contrary. Thames Water had admitted liability under s.209 Water Industry Act 1991 for damage caused by it to the claimants, through water escaping from a burst pipe; the appeal concerned quantum.

Acknowledgment of service for limitation

Habib Bank Ltd v Central Bank of Sudan [2006] EWHC 1767 (Comm)

Field J considered whether there had been a sufficient acknowledgment of a claim so as to prevent a limitation period from expiring. It was held that to amount to an acknowledgment of service for the purposes of s.29 of the Limitation Act 1980, a document had to contain a sufficiently clear admission of the title or claim being acknowledged. An express reference to the amount of the claim was not required.

Limitation defence by insurers on insolvency

Financial Services Compensation Scheme v Larnell (Insurances) Ltd (In Creditors’ Voluntary Liquidation) [2006] QB 808

The CA allowed an appeal by Financial Services Compensation Scheme (‘FSCS’) (a third party) against an order striking out its negligence claim on the basis that it could not succeed due to the limitation defence available to Larnell (an insolvent debtor). The appeal turned on: (1) the effect of an insolvency on an insured upon the running of time under the Limitation Act 1980; and (2) whether s.14B operates to extinguish the right of action or only the remedy. CA held that (1) a limitation defence will fail where winding up proceedings commence before the expiry of the relevant limitation period; and (2) if FSCS succeed on the merits, irrespective of the fact that over 15 years have elapsed since the date of the negligence, they can claim contribution from the insurers under the insurance policy.

English precedent v European ruling

Kay & Ors v Lambeth London Borough Council & Ors: Price & Ors v Leeds City Council [2006] 2 AC 465 HL

The House of Lords considered, amongst other things, whether the English rules of precedent had to be modified to enable a court not to follow a decision by which it would otherwise be bound, where it was inconsistent with a more recent ruling of the court of Strasbourg. It held that English courts had to adhere to English rules of precedent. It was for the national courts to determine how Strasbourg principles were to be applied, and the ordinary rules of precedent had to apply to those decisions. If necessary, a judge could give leave to appeal if a decision follows binding precedent but appears to be inconsistent with Strasbourg jurisprudence.

See Aldi Stores v WSP Group under Keating Chambers Reported Cases on striking out a claim which would involve re-litigation of previously settled allegations.

See P4 Ltd v Unite Integrated Solutions under Keating Chambers Reported Cases on the costs consequences of unreasonable refusal to mediate and failure to provide relevant information at an early stage of proceedings.

KEATING CHAMBERS REPORTED CASES

McGlinn v Waltham Contractors Ltd (No. 2) [2006] BLR 489 TCC

McGlinn v Waltham Contractors (Lucy Garrett) has already been reported on recovery of costs for a discontinued claim. This was an application by the claimant for an order that he could give his evidence by video link in the trial of his claim for damages regarding defective construction of his house in Jersey. Although the judge noted that cross-examination was never quite as effective by this method, the application was granted because there was no significant prejudice to the defendants, whereas the claimant’s tax status would be jeopardised if he left Jersey to come to London.
Adrian Williamson QC
Jonathan Selby

Quietfield Ltd v Vascroft Construction Ltd [2007] CILL 2425 [2007] BLM Vol.24 No.2 CA

This is the CA decision on the appeal from the TCC judgment dismissing the appeal by claimants Quietfield, the owner. The adjudicator had held in the first adjudication that contractors Vascroft had failed to show entitlement to an extension of time. Quietfield subsequently began a second and then a third adjudication and the (same) adjudicator held that he was bound by his original finding and refused to consider Vascroft’s new evidence challenging it. Quietfield commenced enforcement proceedings in the TCC but the court held that the adjudicator had been wrong not to consider the new evidence in the third adjudication. The CA held that the judge had reached the right conclusion and the award would not be enforced.
Matthew Holt
Abdul Jinadu

Epping Electrical Co. Ltd v Briggs and Forrester (Plumbing Services) Ltd [2007] BLM Vol.24 No.2 TCC

The TCC followed the Scottish decision of Richie Bros v David Philp to the effect that the time limits for adjudicators to make their decisions are mandatory, so that failure to comply will produce an unenforceable decision. The sub-sub contract in this case provided for use of the CIC Adjudication Procedure and it appeared that paragraph 25 of the CIC procedure is inconsistent with the mandatory nature of s.108(2) of the Act and paragraphs 16 and 24 of the Procedure. This is seen as a very important decision in that it throws into doubt the validity of a number of contractual adjudication regimes on similar grounds.
David Thomas QC

McConnell Dowell Constructors (Aust) Pty Ltd v National Grid Gas plc [2006] BLM Vol.24 No.1 TCC

Where a supplemental agreement had been reached by the parties to a contract for the construction of a gas pipeline, the court had to decide whether it was covered by the adjudication agreement. In the result, the supplemental agreement was to be construed as a variation of the original contract and so the adjudicator had jurisdiction over both.
Alexander Nissen QC

P4 Ltd v Unite Integrated Solutions plc [2006] BLM Vol.24 No.1 TCC

Supplier P4 had sought damages against contractor Unite for alleged conversion of goods, a computer addressable emergency lighting system supplied to Unite’s sub-contractor, which had become insolvent before P4 was paid. The defendant had unsuccessfully sought summary judgment on the ground that the conversion claim had no real chance of succeeding. However, in the trial it was held that none of the supply contracts incorporated the claimant’s standard terms and the retention of title clause contained in them, on which the claimant sought to rely.

Note that there were important observations by the court on the meaning and effect of a ‘disposition’ of goods/materials in the context of clause 21.4.5.1 of the DOM/2 standard form.
Lucy Garrett

P4 Ltd v Unite Integrated Solutions Plc [2007] CILL 2422 TCC

This is the decision on costs of the main case, also reported in this section. Although the defendant, Unite, had been successful and so would normally have been entitled to its costs from the beginning of the action, it was denied a proportion of its costs because of its failure to provide relevant information at an early stage of proceedings and prior to formal disclosure. On the former point, the CILL Editors note that, notwithstanding the Halsey decision, few cases will be regarded as unsuitable for mediation. They note further that in Hong Kong the Construction and Arbitration List in the High Court is currently operating a pilot voluntary mediation scheme.
Lucy Garrett

Nageh v Richard Giddings [2007] CILL 2420 TCC

The defendants failed in their application to set aside summary judgment of an adjudication decision against them, arguing they were unaware of adjudication or summary judgment proceedings, in which they had not participated. The court confirmed that where claimants and their solicitors had done all that was reasonable to notify the defendants, the court would be slow to refuse summary judgment. See Mersey Docks Property Holdings v Kilgour (Adrian Williamson QC and Jane Lemon) and Rohde Construction v Markham-David (Elizabeth Repper) which were considered.
Tom Lazur

HG Construction Ltd v Ashwell Homes (East Anglia) Ltd [2007] All ER (D) 210 TCC

An adjudicator held that LAD provisions under JCT 98 With Contractor’s Design were enforceable, but on reference of a dispute over delay to a different adjudicator, the claimant obtained a finding that they were not and that LADs paid were repayable. The claimant brought proceedings to enforce the latter award, but the court held that the second adjudicator should have regarded the existing decision as already binding. The court considered Quietfield v Vascroft (Matthew Holt and Abdul Jinadu).
Finola O’Farrell QC
Matthew Holt

Aldi Stores Ltd v WSP Group Plc [2007] EWHC 55 LAWTEL TCC

Consulting engineers and environmental consultants successfully applied to strike out the claim of the respondent as an abuse of process because the effect would be to re-litigate the same alleged breaches of warranty which the applicants had faced and settled in actions brought by the company which had designed and constructed a retail development on the site. The disputes concerned vibro-compaction of the site which had allegedly caused settlement and damage to the buildings.
David Thomas QC

Multiplex Constructions (UK) Ltd v Mott MacDonald [2007] All ER (D) 133 TCC

Enforcement was granted of an adjudicator’s decision against the respondent structural engineers on the Wembley Stadium project. The engineers had been novated to Multiplex, the main contractors. The engineers had sought to resist enforcement on the ground that the adjudicator had been wrong in his interpretation of what was meant by ‘pertinent records’ for the purposes of access to documents. The court held that the adjudicator was entitled to formulate his own interpretation and so was acting within his jurisdiction; whether he was right or wrong was irrelevant for enforcement purposes.
Simon Hughes

Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007] All ER (D) 13
Holding that the adjudication provisions of the GC/ Works sub-contract were non-HGCR Act compliant, because the time limits did not satisfy s.108, the court nevertheless held that the reference to adjudication was valid and the Scheme for Construction Contracts would be implied, as the claimant contended. Only the award of costs and expenses could not stand, as the adjudicator had no such powers under the Scheme.
William Webb

Multiplex Constructions (UK) ltd v Cleveland Bridge UK Ltd [2007] All ER (D) 288 TCC
Following the trial of the first ten preliminary issues, the court had held in June 2006 that Cleveland Bridge had repudiated the steel sub-contract at Wembley Stadium. This part of the litigation decided that temporary roof works designed to support the roof during construction did not form part of the works covered by the fixed lump sum agreed.
Paul Buckingham
Lucy Garrett

Cubbitt Building & Interiors Ltd v Fleetglade Ltd [2007] All ER (D) 268 TCC
The issue of an adjudication decision a few hours outside the deadline, when the decision had been reached within the time limit, would not invalidate the decision. The adjudicator had mistakenly thought he was entitled to a lien and had incorrectly withheld publication to the parties, but only very briefly. Accordingly the decision complied with the time-limit in the JCT Contract 1998 edition.
Alan Steynor

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. MCI.Arb MRICS Barrister) Visiting Professor of Law, Oxford Brookes University.

www.keatingchambers.com

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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.