UK: Construction, Property & Real Estate (Case Law Review, Issue 7, 2007)

Last Updated: 1 November 2007
Article by Keating Chambers

ADJUDICATION

Excess of jurisdiction

Quietfield v Vascroft – a case of excess (jurisdiction)? by Kevin Barratt, Construction Law Journal 2007 Vol.23 No.5 p.356
The article considers the propositions that the judgment of Jackson J, subsequently upheld by the Court of Appeal in Quietfield v Vascroft (Matthew Holt and Abdul Jinadu), was right, but that Quietfield’s concession on natural justice was wrong, and that the adjudicator’s error resulted in an excess of jurisdiction. The article also comments at some length on Jackson J’s ‘five propositions’ about adjudication in Carillion Construction v Devonport Royal Dockyard (Stephen Furst QC and Louise Randall). The conclusion is that "caution should be exercised before relying upon the Quietfield judgment in relation to the natural justice point… Ultimately, Quietfield should be remembered, and cited, for its clear statement on the approach to multiple adjudications concerning extensions of time and liquidated damages, but not otherwise."

Adjudication in Australia

Adjudication Down Under: a survey of the adjudication legislation in Australia by Robert Fenwick Elliott, Fenwick Elliott Grace, Adelaide and Jeremy Coggins, University of South Australia, Construction Law Journal 2007 Vol.23 No.5 p.364
The regular Construction Act Review feature by Peter Sheridan and Dominic Helps of Shadbolts consists of the Fenwick Elliott/Coggins paper which considers the impact of adjudication in Australia, specifically drawing on Australian experience. It reviews case law and gives some statistical data on volume of adjudication activity.

See Domsalla v Dyason under Keating Chambers Reported Cases on unfairness of withholding and adjudication provisions in a JCT Minor Works contract.

See Mott MacDonald v London & Regional Properties under Keating Chambers Reported Cases on whether a letter of intent was a contract in writing under HGCR Act s.107 and on adjudicators’ liens.

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.

HGCR Act in the Lords

Lords split on Construction Act case by Shona Frame, MacRoberts Construction Law Vol.18 Issue 6 July 2007 p.14
The article reports on and analyses the landmark decision of the House of Lords on the payment provisions of the HGCR Act; the first to be made. The case considers the interaction between the statute and the termination provisions of the (JCT 98) contract. The article emphasises the split in opinion between the Law Lords which may leave scope for further movement in the law.

See also latest report of the case at [2007] BLR 257

See Norwest Holst v Danieli Davy Distington under Keating Chambers Reported Cases on whether design and construction of steel pit facilities comprised construction operations within s.105(1) HGCR Act.

Wrong appointing body

Lead Technical Services Ltd v CMS Medical Ltd [2007] BLR 251 and [2007] BLM Vol.24 Number 6 CA
The Court of Appeal allowed an appeal against a grant of summary judgment of an adjudicator’s decision, on the ground that the defendant had a real prospect of establishing a lack of jurisdiction in making the decision. The Deed of Appointment provided for the application of the TeCSA Rules, but the adjudicator was appointed by ICE, rather than TeCSA. It was thus eminently arguable that the adjudicator was appointed by the wrong body and so lacked jurisdiction. Accordingly, summary judgment should not have been granted.

Extension of time-limit by adjudicator

AC Yule & Son v Speedwell Roofing & Cladding Ltd [2007] All ER (D) 100 TCC
The court held that there is a clear obligation on the parties to an adjudication to respond plainly and promptly to an adjudicator’s request for an extension of the 28 day time-limit. If a party does not respond, there would be a strong case for saying they have agreed to the request. Here the defendant was not only silent, but had sent large quantities of further information very late, and would be taken to have agreed to the request. Any objection to a request for an extension must be made clear.

JCT Minor Works

ART Consultancy Ltd v Nevada Training Ltd [2007] All ER (D) 157 TCC
The claimant contractor was engaged by the defendant client to design works and then build them. Because the JCT Minor Works Contract had been used, this was a written contract and subject to the HGCR Act adjudication provisions. However, unlike other JCT contracts, the MW is expressly limited to construction. The design work was therefore not covered by the written contract. The adjudicator had been correct to strip out of the claim any element relating to design, since he would have no jurisdiction there. Accordingly, the award would be enforced and summary judgment granted to the claimant.

Construction Law August/ September 2007 Vol. 18 Issue 7 contains the following:

HGCR Act in the Lords: the broad view
by Simon Hargreaves, Keating Chambers

Spit it out, or perhaps not
by Paul Newman, 3 Paper Buildings
(on jurisdictional challenges)

A fertile area for lawyers
by Michael Draper, Shadbolt & Co

See DGT Steel and Cladding v Cubitt Building & Interiors under Keating Chambers Reported Cases on application for stay of court proceedings pending adjudication.

See Pierce Design International v Johnston under Keating Chambers Reported Cases on failure to make payment without withholding notice, following Melville Dundas v George Wimpey.

See Mast Electrical Services v Kendall Cross under Keating Chambers Reported Cases on the inadequacy of quotations and correspondence to constitute a written contract under s.107 HGCR Act.

See RC Pillar v The Camber under Keating Chambers Reported Cases on parties’ agreement to increase the ad hoc jurisdiction of the adjudicator.

ARBITRATION AND DISPUTE RESOLUTION

Expert determination

Expert determination – use with caution by Michael Draper, Shadbolt & Co, Construction Law Vol.18 Issue 6 July 2007 p.32
This article, in the regular ADR slot in the journal, outlines the features of expert determination and differentiates it from adjudication and arbitration. Nikko Hotels v MEPC, which is much cited in adjudication cases such as Bouygues v Dahl Jenson (Stephen Furst QC), is the only authority referred to.

Exclusion of right to s.69 challenge

Essex County Council v Premier Recycling Ltd [2007] Vol. 24 No. 7 July 2007 TCC
In the context of a contract for management of amenity and recycling centres, the use of the words ‘final and binding’ in an arbitration agreement was not sufficient to exclude the possibility of a challenge under s.69 Arbitration Act 1996. Clear words would be necessary to do so, indicating an intention by the parties to exclude a process of challenge in the courts; the words did not clearly show this intention, because of the context.

Arbitrator’s own expertise

JD Wetherspoon plc v Jay Mar Estates [2007] BLR 285 TCC
The claimant tenants sought to challenge an award on a rent review, claiming that the arbitrator was in error in disregarding submissions and relying on his own methods of assessment without giving the parties opportunities for further comment on them. The court held that the arbitrator was entitled to trust his own professional expertise and that nothing in his approach could be said to constitute serious irregularity within s.68 of the Arbitration Act 1996.

Reasons in expert determination

Halifax Life Ltd v Equitable Life Assurance Society Construction Law Journal [2007] Vol. 23 No.5 Commercial Court
An umpire, deciding on a sum payable as a premium on reassurance, was agreed to be undertaking an expert determination. The court held that it had power to order an expert to give reasons or further reasons for his decision when providing an expert determination.

Grounds for stay of arbitration

J. Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] All ER (D) 96 TCC
The claimant main contractor sought an injunction to stay an arbitration commenced by the defendant client in respect of a dispute over construction of a design and build contract for a warehouse. The claimant wanted to pursue litigation. The court, refusing the injunction, noted that, since the 1996 Arbitration Act, the power to stay an arbitration should be exercised sparingly. Concurrent proceedings did not mean that the arbitration was vexatious; the arbitration had been ongoing for many months before the claimant sought a stay.

Arbitrator wrong to ignore enforcement decision

Michael John Construction Ltd v St. Peters Rugby Football Club [2007] All ER (D) 458 TCC
A challenge under s.67 of the Arbitration Act 1996 was successful. The arbitrator had been wrong in law to ignore a judgment in enforcement of an adjudication and whether further evidence could be adduced. The adjudication decision, on the proper responding parties to an adjudication, was reported in 2006. Only in exceptional circumstances should a party be allowed to re-open in an arbitration matters already decided by a court.

International Arbitration Law Review Vol.10 Issue 3 June 2007 contains the following articles:

The importance and urgency of the Energy Charter Treaty
by Richard Kreindler, Shearman & Sterling, Frankfurt

Provisional application and the Energy Charter Treaty: the Russian Doll Provision
by Kay Hobér, Mannheimer Swartling and Sophie Nappert, Denton Wilde Sapte

The jurisdiction problem in Energy Charter Treaty claims
by Laurence Shore, Herbert Smith, London

Consent to submit investment disputes to arbitration under Article 26 of the Energy Charter Treaty
by Adnan Amkhan, University of Bedfordshire

The legal status of the investor vis-à-vis the European Communities: some salient thoughts
by Richard Happ, Luther Rechtsanwaltgesellschaft, Hamburg

The dispute resolution provisions of the Energy Charter Treaty
by Philippe Pinsolle, Shearman & Sterling, Paris

The use of precedents in ICSID arbitration: regularity or certainty?
by Domenico di Pietro, Chiomenti Studio Legale, Rome

‘Unreasonable or discriminatory measures’ as a cause of action under the Energy Charter Treaty
by Veijo Heiskanen, Lalive, Geneva

Global Arbitration Review Vol. 2 Issue 3 July 2007 contains the following articles:

D.I.V.O.R.C.E.
by David Samuels

and

Morales about to take on the Constitutional Tribunal
by Christian Leathley, Clifford Chance

and

Bolivia exposes ‘critical date’ ambiguity
by Alejandro Escobar, Latham & Watkins
(all on Bolivia’s withdrawal from ICSID).

A tale of two cities
by Samuel Haubold, Littleton Chambers
(on differences between London and New York on res judicata).

Bermuda makes waves with IPOC decision
by Nigel Rawding and Daniel Kalderimis, Freshfields Bruckhaus Deringer
(on anti-suit injunctions).

Expert evidence – the evolution of best practice
by Richard Bamforth and Ned Beale (Olswang)
and Andrew Grantham (Alix Partners)

New approach creates paradox for UK parties
by Michael Nolan and Lesley Benn, Milbank Tweed Hadley & McCloy, Washington DC

Looking for flaws in the 1996 Act
by Bruce Harris

What price accuracy?
by Cy Benson and Nathalie Allen, Gibson Dunn & Crutcher
(on the value-date for quantification of damages).

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

Anti-arbitration injunctions on

  • Internet FZCO v Ansol
  • Elektrim v Vivendi and
  • J. Jarvis v Blue Circle

(on restraint of participation in an arbitration).

Alternative dispute resolution
on Tramtrack Croydon v London Bus Services (agreements to negotiate).

Enforcement of awards
on G. Middleton v Berry Creek Overseas Development (stay of execution).

Error of law
on Chattan Developments v Reigill Civil Engineering (on factual evidence).

Dispute Resolution Magazine Vol. 13 No. 2 Winter 2007 contains the following articles:

Using video to teach negotiation and mediation
by Dwight Golann, Suffolk University Law School

Tort reform renews debate over mandatory mediation
by Richard Reuben, University of Missouri-Columbia

Another view of mandatory mediation
by Frank Sander, Harvard Law School

CONTRACT AND PROCUREMENT LAW

Tender contract

J&A Developments Ltd v Edina Manufacturing [2007] BLM July 2007 Vol. 24 No. 7 HC (NI)
This case confirms, and in a private sector project, 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.

Partnering

Partnering strategies: the legal dimension by Ellis Baker, White & Case, Construction Law Journal 2007 Vol.23 No.4 p.344
Outlines the partnering and alliancing concepts and the benefits of their use. Considers the dangers of partnering without a legal framework and also the use of traditional and innovative forms of contract respectively as a preferable alternative. Specific issues referred to include pain/gain sharing agreements, open book accounting and alliancing restrictions under EU procurement law.

Construction Law Vol. 18 Issue 6 July 2007 contains the following articles:

No need to read twice
by Michael Phipps, Thurston Consultants (comparing JCT 2005 with Quantities with JCT 98)

FIDIC – the management of variations
by Tim McGoldrick, Driver Consult

JCT leaves risk allocation unchanged
by Neil Jones, Pinsent Masons

Better safe than sorry
by Jeffrey Brown and Joanne Ryan, Hammonds (on the new Construction (Design and Management) Regulations

Causation in construction insurance claims
by John D Wright, JD Risk Associates

Construction Law Vol. 18 Issue 7 August/September 2007 contains the following articles:

Extensions of time stay in sorry state
by Michael Phipps, Thurston Consultants

The JCT Constructing Excellence Contract
by Neil Jones, Pinsent Masons

Competitive Dialogue threatens PFI
by Sophie Charveron, Kirkpatrick & Lockhart Preston Gates Ellis

International Construction Law Review Vol. 24 Part 3 July 2007 contains the following articles:

Worlds apart: EPC and EPCM Contracts: risk issues and allocation
by Philip Loots, Clough Ltd and Nick Henchie, Mayer Brown Rowe & Maw

Difficulties encountered in the English-French translation of FIDIC’s Standard Form Contract
by Götz-Sebastian Hök Stieglmeier

Current issues in hospital PPPs in Australia
by Andrew Chew, David Storr and Barry Casey, Mallesons Stephen Jaques

Comparative study of the Price-Quality Method in Singapore
by Low Sui Pheng and Pauline Ang, National University of Singapore and John Barber, King’s College London

The law governing an international construction contract
by RH Christie, University of Cape Town

PSSCOC and variations: an analysis of consultant-related variations in school building projects
by Faisal Manzoor Arain, Institute of Business Administration Karachi and Low Sui Pheng, National University of Singapore

The reaffirmation of party autonomy in South Africa
by Patrick Lane SC

Public Procurement Law Review 2007 Number 4 pages 211 – 303; NA89 – NA118 contains the following articles:

The Bid Challenge Under the WTO Government Procurement Agreement: a Critical Study of the Hong Kong Experience
by Henry Gao

Renewing the WTO Agreement on Government Procurement: Progress to Date and Ongoing Negotiations
by Robert D. Anderson

Clarity at Last? Low Value Contracts and Transparency Obligations
by David McGowan

Small and Medium-Sized Enterprises and Procurement Law – European Legal Framework and German Experiences
by Professor Dr. Martin Burgi

contains News and Analysis on:

European Communities
Unfinished Business: The State of implementation of the New EC Public Procurement Directives in the Member States on February 1, 2007

Revision of the Financial Rules Applicable to the General Budget of the European Communities

Germany
The New Contract and Contract Award Legislation in Germany following the Adoption of the Ordinance on the Award of Public Contracts (Vergabeverordnung)

United Kingdom
Improving the PFI Tendering Process: Review of Report by National Audit Office

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES

Statutory interest

Late Payment of Commercial Debts (Interest) Act 1998 – No laughing matter by John Barber, King’s College, London, Construction Law Journal 2007 Vol. 23 No. 5 p.33
This is a description and analysis of the statute which provides for interest to be claimed in respect of late payment, considering the background and introduction of the Act, how entitlement arises, calculation of interest and express exclusion and variation of the statutory requirements, including rate of interest.

See Shepherd Homes v Encia Remediation under Keating Chambers Reported Cases on whether a cap on liability formed part of the contract and whether it was reasonable within the meaning of UCTA.

See Reinwood v L Brown & Sons under Keating Chambers Reported Cases on deduction of liquidated damages after cancellation of certificate of non-completion.

See Tyco Fire and Integrated Solutions v Rolls-Royce under Keating Chambers Reported Cases on contractual requirement for joint names insurance for specified perils.

Fixed price Contract

SW1 Ltd v PE1 Data Services Ltd [2007] All ER (D) 42 CA
The Court of Appeal dismissed an appeal by the defendant main contractor against a finding by the judge that it had entered into a fixed price sub-contract with the claimant sub-contractor. The claimant having substantially completed the work, the main contractor could not seek any reduction in the price. The main contractor argued unsuccessfully that the sub-contract was a unit-priced contract. As it was a fixed-price contract, even a variation would not automatically vary the price; certainly, simply removing part of the works would not do so.

Insurance indemnity refused

Seele Austria Gmbh & Co v Tokio Marine Europe Insurance [2007] EWCH 1411 Commercial Court
The court held that the contractors were not entitled to an indemnity under a combined contract works and third party liability policy in respect of loss and expense sustained in doing remedial works to defective windows which they had installed. This was intentional damage done to carry out the repairs, not unintentional damage resulting from the defects.

GENERAL AND PROFESSIONAL NEGLIGENCE

Quantum and definitions

Mirant Asia-Pacific Construction (Hong Kong) Ltd v Ove Arup and Partners International Ltd [2007] CILL 2480 TCC
This is the quantum hearing on a long-running decision reported on liability in CILL. The quantum points are heavily fact-based but the report is useful as the judges expressly adopted a definition of ‘critical path’ as "the sequence of activities through a Project network from start to finish, the sum of whose durations determines the overall project duration"

The judge also preferred ‘Windows analysis’ as "an excellent form of analysis" to the "less reliable form of critical path analysis", as he described watershed analysis.

Construction Law Vol. 18 Issue 6 July 2007 contains the following article:

Litigators cheered by court ruling
by Paul Newman, 3 Paper Buildings (on Hart Investments v Fidler)

Engineer’s duty to warn

Hart Investments Ltd v Fidler [2007] BLM Vol.24 No.6 June 2007
Following collapse of temporary works supporting retained facades, the client sued the engineer; the contractor was in liquidation. The point at issue was whether the engineer, retained only to design the permanent works, owed any duty to the client if he became aware of dangers created by the contractor’s work on the temporary works. The decision was that, if an engineer engaged for permanent works observed that the state of temporary works was causing immediate danger to the permanent works, he was under a duty to the owner, in contract and tort, to take such steps as were available, including warning the owner, to avoid the danger.

Duration of liability

Oxford Architects Partnership v Cheltenham Ladies College [2007] BLR 293 TCC
The court held that it is open to parties to agree a period of liability by contract which will modify the provisions of the Limitation Act, both by shortening it or even by lengthening it. There may be a continuing duty to review design during the period of construction, depending on the architect’s engagement. The date on which the cause of action accrues for limitation purposes would be the time at which the damage accrues: applying Pirelli v Oscar Faber.

PRACTICE AND PROCEDURE

Rectification refused

Connolly Ltd v Bellway Homes Ltd BLM June 2007 Vol.24 No.6 Ch. Div
Connolly failed in its application for rectification of a contract for the sale of land in which a formula had been inserted based on an average of three valuations of price per net square foot. Connolly argued mutual mistake and unilateral mistake in an attempt to get the figure changed but the court held that the claimant had failed to show that the written contract did not reflect the parties’ intention. However, curiously, since unconscionable conduct was not proven, the judge felt able to award damages based on deceit, while refusing the application to rectify the contract.

Pre-action Costs for breach of Protocol

Charles Church Developments Ltd v Stent Foundations [2007] CILL 2477 TCC
This case has already been reported in CILL and BLR on Charles Church’s breach of the Pre-action Protocol in failure to apply to the court for directions when issuing proceedings, due to limitation difficulties. This report is of the hearing as to costs. Not all costs incurred would be awarded as some would have been incurred by the defendant anyway. The case contains a useful summary of the general position on the recovery of costs for breach of the Pre-action Protocol. In the result, Charles Church would bear 50% of Stent’s costs.

EC Judgments Regulation

Hewden Tower Cranes Ltd v Wolffkran GmbH [2007] 273 TCC
Hewden, operator of a crane supplied by the German company Wolffkran, had to meet successful claims by the families of those Hewden employees killed in the Canary Wharf collapse and by those whose property was damaged. Wolffkran sought to challenge the jurisdiction of the TCC to hear Hewden’s claim against it for contribution, arguing that under article 2 of the Judgments Regulation the claim should be pursued in the country of its domicile, in this case, Germany. Wolffkran sought to rely on provisions of its supply agreement giving the German courts exclusive jurisdiction. The court held that Wolffkran’s challenge should be dismissed: the case did concern a claim relating to a tort, delict or quasi-delict under Article 5(3) and the provision of the agreement could not oust jurisdiction concerning a negligence claim.

Damages cap and UCTA

Regus (UK) Ltd v Epcot Solutions Ltd [2007] BLM Vol. 24 No. 7 July 2007 Commercial Court
The claimant, which supplied serviced office accommodation, sued the defendant, a client using its services, for sums owed and was met with a counterclaim in relation to defective air-conditioning. The court considered it reasonable within the meaning of UCTA for the claimant to restrict damages for loss of profits and consequential losses. However, if the clause of the contract deprived the defendant/counter-claimant of any remedy for malfunctioning air-conditioning, that would be too wide an exclusion. Here the effect of the failures was significant but not crucial, so an appropriate measure of damages would be reduction of fees due, unless the claimant could prove additional specific loss.

Construction Law August/ September 2007 Vol. 18 Issue 7 contains the following articles:

Site waste can create criminals
by Jane Hughes, Collyer Bristow
(on Draft Site Waste Management Regulations Offences)

Interest under s.35A Supreme Courts Act 1981
by Stephen Alexander, Pinsent Masons

Unreasonable behaviour

Iggleden v Fairview Homes [2007] All ER (D) 330 TCC
The defendants, Fairview, failed in their claim for a declaration that the claimant purchasers’ refusal to allow them to complete significant remedial works was unreasonable. The claimants had acted unreasonably in refusing to allow surveyors to meet to discuss the dispute, but the defendants had not shown on a balance of probabilities that settlement would have been achieved. Where the claimants had delayed in carrying out repairs, that was failure to mitigate and they could not claim in respect of the delay. But it was not unreasonable for the claimants to say that they did not want the defendants to carry out the remedial works.

Date for diminution in value assessment

Shepherd Homes Ltd v Encia Remediation Ltd [2007] All ER (D) 334 TCC
This is related to litigation noted under Keating Chambers Reported Cases on the validity of a liability cap (Adam Constable). Here the issue was the date at which diminution in value should be assessed for purposes of ascertaining quantum in a defective construction case. The court held that it would be ‘patently absurd’ to assess diminution in value at the date of construction in 2002 and so damages would be assessed as at the trial date in 2007.

KEATING CHAMBERS REPORTED CASES

Shepherd Homes Ltd v Encia Remediation [2007] BLM Vol.24 No.6 TCC
Reported in BLR and Con LR. In an offer/acceptance dispute concerning a piling sub-contract, it was held that the sub-contractors had successfully incorporated into the agreement a cap on liability based on the sub-contract price, although the cap did not invalidate an indemnity supported by PI for a much larger sum. The cap provision was held to be fair and reasonable within the meaning of s.3 of the Unfair Contract Terms Act.
Adam Constable

Norwest Holst Ltd v Danieli Davy Distington [2007] All ER(D) 120 TCC
The court decided that works including the design and construction of a casting pit for a steel production facility were construction operations within s.105(1) of the HGCR Act and did not fall within the s.105(2)(c) definition of plant and equipment.
Jessica Stephens

Mott McDonald Ltd v London & Regional Properties Ltd [2007] CILL 2481 TCC
A letter of intent between the claimant consultant and the defendant client was held not to be an agreement in writing for the purposes of s.107(2) HGCR Act because it had been subject to substantial amendments, partly in writing, partly by conduct and partly to be inferred from conduct. Accordingly, this was not a statutory adjudication and the adjudicator lacked jurisdiction, so his decision could not be enforced by summary judgement. The court also made findings relating to the adjudicator’s inability to impose a lien to secure payment of his fees or to oblige the referring party to pay his fees as a condition of appointment.
Alexander Nissen QC

Domsalla v Dyason [2007] TCLR 4 TCC
The defendant owner, whose house had burnt down, was told by his insurers to enter into a JCT Minor Works Contract (1998 edition) with the claimant contractor. The contractor obtained an adjudication decision in its favour against the owner and applied for summary judgment by way of enforcement. In refusing summary judgment, the defendant was given leave to defend the claim on the ground that the withholding notice provisions of the JCT Minor Works Contract were unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999, and accordingly were not binding on him as a consumer. Further, the court held that the doctrine of ‘unreviewable error’ of an adjudicator’s decision made within his jurisdiction only applied to statutory adjudications, which this was not. Per curiam, the claimant was found to be an agent of his insurers and the defendant was held to have enforceable rights under the Contracts (Rights of Third Parties) Act – 1999 in respect of a payment mandate between insurers and contractor.
Calum Lamont

Reinwood Ltd v L Brown & Sons Ltd [2007] CILL 2486 CA
This is the CA decision on appeal from the TCC judgment, also reported in CILL. The first instance decision was reported on formalities necessary for an extension of time and particularly on the criteria for unreasonable determination by contractors. The appeal was conducted on the issue of whether the cancellation of the certificate of non-completion under Clause 24 (of JCT 98) by the grant of an extension of time had the effect that the employer could no longer justify a LAD deduction. In the result, the employer’s appeal was allowed; the employer’s right to deduct LADs was not lost by the grant of the extension of time even if its effect was to cancel the certificate of non-completion.
Stephen Furst QC

HG Construction Ltd v Ashwell Homes (East Anglia) Ltd [2007] BLM Vol. 24 No. 7 TCC
Already reported in BLR. An adjudicator held that LAD provisions under JCT with Contractor’s Design 98 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

Mast Electrical Services v Kendall Cross Holdings Ltd [2007] All ER (D) 327 TCC
The claimant sub-contractor failed in its action for declarations that communications between it and the defendant sub-contractor constituted a construction contract for the purposes of the adjudication provisions of s.107 HGCR Act. On the evidence, quotations and correspondence relied upon by the claimant would not satisfy the requirements of s.107 as interpreted by RJT Consulting Engineers v DM Engineering.
Sarah Hannaford

RC Pillar & Son v The Camber [2007] All ER (D) 319 TCC
The claimant contractor succeeded in its argument that it had made a binding agreement with the defendant client which gave the adjudicator ad hoc jurisdiction to decide both the claimant’s claims and the defendant’s cross-claims without considering procedural defences. The defendant was held to have waived its jurisdiction objections.
Adrian Williamson QC

DGT Steel and Cladding Ltd v Cubitt Building and Interiors Ltd [2007] All ER (D) 43 TCC
The defendant main contractor succeeded in its application for a stay in court proceedings pending adjudication. The claimant sub-contractor argued that there should be no stay because there was no obligation under the HGCR Act to refer a dispute to adjudication, only a right to do so. However, it was decided that the statute was irrelevant; what was decisive was the contractual agreement to refer disputes to adjudication. The court has inherent jurisdiction to order a stay for breach of an agreement to refer disputes to a particular form of dispute resolution and the persuasive burden would be on the party seeking to resist the stay.
William Webb

Pierce Design International ltd v Johnston [2007] All ER (D) 324 TCC
This is an early application of the House of Lords decision in Melville Dundas v George Wimpey to the effect that clause 27.6.5.1 of the JCT contract (1998) which allowed an employer not to pay a sum without a withholding notice, did not contravene the HGCR Act s.111. The claimant was successful in its application for summary judgment.

Lucy Garrett
Richard Coplin

Tyco Fire and Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd [2007] All ER (D) 86 TCC
Under a design and build contract, the claimant contractor agreed to provide a fire protection system at the premises of the defendant client. The contract required the client to take out joint names insurance, which was not done, in respect of specified perils. When water from the mains flooded the client’s premises, the client obtained damages in adjudication. The court, applying CRS v Taylor Young, held that the parties had provided contractually for dealing with damage caused by specified perils; the joint names insurance was the fund to which both parties should have been able to look.
Krista Lee

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.

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

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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.