UK: Case Law Review - Construction, Property & Real Estate (January 2009)

Last Updated: 21 January 2009
Article by Keating Chambers


Case Law Index

Construction Act Review
by Peter Sheridan and Dominic Helps, Shadbolt & Co, Construction Law Journal (2008) Vol. 24 No. 8 p.698

The authors provide their 8th Annual review of the existing body of HGCR Act Case Law. It contains an alphabetical list of nearly 320 cases (if one includes appeals and a few relevant non-Act cases).

The case law subject matter index now has over 120 categories. A commendable effort has been made to provide sub-categories, which makes the latter index far more useful. A large category like Enforcement has 9 sub-categories, ranging from 'stay of execution' to costs.

See Balfour Beatty Construction Northern v Modus Corovest (Blackpool) under Keating Chambers Reported Cases on enforcement of adjudication and attempts to set-off a cross-claim.

See Air Design (Kent) v Deerglen (Jersey) under Keating Chambers Reported Cases on an adjudicator's jurisdiction to decide how many contracts the parties had made.

Alleged bias in nomination

Makers UK Ltd v Camden London Borough Council [2008] BLM Vol. 25 No. 10 TCC
Already reported in BLR, Camden sought to challenge the adjudicator's jurisdiction on the ground that he had been improperly appointed by RIBA. Makers had contacted RIBA to request the appointment of the adjudicator who was actually appointed. The court rejected the existence of an implied term that neither party should seek to influence the appointment. Since the nominating body was under no obligation to accede to the representations, there was no appearance of bias in appointing an adjudicator previously requested by one of the parties.

See Birmingham City Council v Padison Construction under Keating Chambers Reported Cases on lack of jurisdiction to hear second adjudication of same dispute.

See Kier Regional v City and General Holborn under Keating Chambers Reported Cases on an attempt to use a third party debt order to enforce an adjudication award.

See Benfield Construction v Trudson (Hatton) under Keating Chambers Reported Cases on the jurisdiction of a third adjudicator over the same dispute.



The law governing arbitrability under the Arbitration Act 1996
by Mihail Danov, Brunel University, Lloyds Maritime and Commercial Law Quarterly 2008 Part 4 November p.536
Noting that the English legislation does not provide the means to test for arbitrability, nor even to define it, the author finds that there is no definitive answer to the question as to which system of law would decide the point. There is, however, extensive discussion by scholars as to how arbitrability should be approached. The choice is between the law of the forum, the law of the tribunal's seat or the law of the place of enforcement of the award. The author argues for the law of the seat of the tribunal.

Global Arbitration Review Vol. 3 Issue 6 2008

Derailment and delay tactics: some possible solutions
by Wolfgang Peter, Python & Peter, Geneva

Dissents, concurrences and a necessary divide between investment and commercial arbitration
by Laurence Shore and Kennth Juan Figueora, Gibson Dunn & Crutcher, New York

Arbitration International Vol. 24 No. 4 2008
contains the following articles:

Parallel proceedings in international arbitration
by Bernardo Cremades and Ignacio Madalena, B Cremades y Asociados, Madrid

Class action arbitrations – the challenge for the business community
by Philip Allen Lacovara, Mayer Brown

Drafting arbitration agreements
by Prof. Aldo Frignani, University of Turin

Amicus submissions in investor-state arbitration after Suez v Argentina
by Epaminontas Triantafilou, White & Case, Washington DC

Current use of the UNCITRAL Arbitration Rules in the context of investment arbitration
by Norbert Horn, University of Cologne

CIETAC Arbitration Clause revisited
by Howard Yinghao Yang, Morgan Lewis, New York

Decoding Singapore's International Arbitration Act Section 12(7)
by Jean Ho, National University of Singapore

Global Arbitration Review
(Special Issue: European and Middle Eastern Arbitration Review 2009)
contains the following articles:

Ethics in European arbitration
by Paul Mitchard QC, Skadden Arps Slate Meagher & Flom

The effects of insolvency on arbitration proceedings
by David Foster and Simon Walsh, O'Melveny & Myers

The future of investment treaty protection in Eastern Europe
by Stanimir Alexandrov, Marinn Carlson and Joshua Robbins, Sidley Austin

Lex Mercatoria revisited
by Antonio Hierro and Miguel Angel Melo, Cuatrecasas

State of necessity in investment arbitration
by Domenico di Pietro, Chiomenti Studio Legale

Worldwide freezing orders in disputes between states and commercial parties
by Andrew Hutcheon, Watson Farley & Williams

by Franz Schwarz, Wilmer Cutler Pickering Hale and Dorr

Czech Republic
by Vit Horacek, Glatzova & Co

Denmark: the boundaries between arbitration and civil proceedings
by Niels Schiersing, Nordia Law

Finland: recent development
by Petteri Voti and Eva Stosrskubb, Dittmar & Indrenius

France: is international arbitration at risk of being nationalised?
by Tim Portwood, Bredin Prat

Arbitration in Germany
by Daniel Busse, Robert Hunter and Karl Pörnbacher, Lovells

by Prokopis Dimitriadis and Konstantinos Rokas, Lambadarios Law Offices

Arbitration in Ireland: a time of change
by John Doyle, Dillon Eustace

by Chawkat Houlla, Adib & Houalla Law Office

by Bommel van der Bend and Eelco Meerdink, De Brauw Blackstone Westbroek

Modernising the Portuguese arbitration law
by Tania Cascais and Antonia Teixeira Duarte, Miranda Correia Amendoeira & Associados

by Crenguta Leaua, Tanasescu Leaua Cadar

by Andrew Yukov and Alexander Khrenov, Yukov Khrenov & Partners

by Robert Pruzinsky, Malata Pruzinsky Hegedus & Partners and Vit Horacek, Glatzova & Co

Arbitration in Spain
by Felix Montero, Perez-Llorca

by Eric Runesson and Simon Arvmyren, Sandart & Partners

Switzerland: new procedure for the challenge of international awards
by Michael Stepek and Oliver Ciric, Hogan & Hartson

by Urku Cosar, Cosar

by Marta Khomyak, Magisters

A review of English arbitration law in 2008
by Audley Sheppard and Leigh Crestohl, Clifford Chance

Arbitration Law Monthly December 2008/ January 2009 Vol. 9 Issue 1
contains the following articles:

on (Tsavliris Salvage (International) v Grain Board of Iraq (state immunity in resisting enforcement of an award)

Commencing on arbitration
on Taylor Woodrow Construction v RMD Kwikform (David Thomas QC)
(time limits for commencement)

Challenging an award
on Sheltam Rail Co v Mirambo Holdings
(setting aside a notice of discontinuance)

Extension of time for arbitration appeals
on L Brown & Sons v Crosby Homes (North West) (Marc Rowlands and Nerys Jefford QC)
(principles for extending time limits)

on Gater Assets v NAK Naftogaz Ukrainity (No. 2) (on the court's power to award interest up to payment date)

Global Arbitration Review
(Special Report Arbitration Review 2009)
contains the following articles:

International arbitration in South and East Asia – opportunities, challenges and the ICC experience
by Jason Fry and James Morrison, ICc

'The worst of times, the best of times'
by Adrian Winstanley, LCIA

International arbitration: past, present and future
by Jun Bautista, International Centre for Dispute Resolution

The arbitration landscape in Hong Kong
by Gary Soo, HKIAC

International arbitration in Asia
by Michael Moser, O'Melveny & Myers

FDI growth in Asia: the potential for treaty-based investment protection
by Stanimir Alexandrov, Amelia Porges and Meredith Moroney, Sidley Austin

Arbitration in Australia
by Doug Jones & Björn Gehle, Clayton Utz

Is CIETAC leading arbitration in Asia into a new era of transparency?
by Paul Mitchard QC, Skadden Arps Slate Meagher and Flom

Hong Kong
by Kathryn Sanger, Clifford Chance

Arbitration in Singapore 2008
by Justyn Jagger & Jeremy Choo, DLA Piper Singapore

Arbitration clause unfair

Mylcrist Builders Ltd v Buck [2008] BLR 611 TCC
Already reported in CILL, the builders' standard terms of contract contained an arbitration clause and they proposed to refer a payment dispute to arbitration. The client, an individual owner-occupier, succeeded in her argument (appearing in person) that the clause was unfair pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The builders failed in their argument that they had achieved a valid appointment of an arbitrator under s.17 Arbitration Act when the other party refused to appoint; this was held only to apply to parties each appointing an arbitrator and not to a sole arbitrator.

Global Arbitration Review
(Special Issue: Review of the Americas 2009)
contains the following articles:

Discovery in arbitration: recent developments
by James Carter, John Hardiman and Joseph Neuhaus, Sullivan & Cromwell

Making investment treaties work for Latin America
by Stanimir Alexandrov, Nicolas Lloreda, Patricia Grané and Meredith Moroney, Sidley Austin

Enforcing arbitration agreements amid multi-jurisdictional litigation
by John Gardiner and Timothy Nelson, Skadden Arps Slate Meagher and Flom

The New York Convention in Latin America: lessons from recent court decisions
by Cristian Conejero Roos, Cuatrecasas

Argentina: the New York Convention and the issue of arbitrability
by Guido Barbarosch, Richards Cardinal Tűtzer Zabata & Zaefferes

Recent developments in Bermuda arbitration
by Jan Woloniecki and Peter Dunlop, Attride-Sterling and Woloniecki

Enforcement of foreign arbitral awards in Brazil
by Fabiano Robalinho Cavalcanti, Escritoriode Advocacia Sergio Bermudes

Cayman Islands: recent developments in arbitration law
by Jeremy Walton and Chris Easdon, Appleby

National and international arbitration in Ecuador
by Rodrigo Jijon-Letort and Javier Robelino-Orellana, Perez Bustamente & Ponce

Recognition and enforcement of international awards in Uruguay
by Sandra Gonzalez, Ferrere Abegados

The Venezuelan judiciary: controlling or collaborating with arbitration?
by Fernando Pelaez-Pier, Hoet Pelaez Castillo & Duque

International Arbitration Law Review Vol. 11 Issue 6 2008
contains the following articles:

The ICDR Guidelines for Arbitrators Concerning Exchanges of Information – a German/American Introduction in light of international practice
by Martin Gusy and Martin Illmer

Arbitration under the OHADA regime
by Emilia Onyema, SOAS, University of London
(on the Organisation for the Harmonisation of Business Law in Africa).


Challenges to contract award

Henry Brothers (Magherafelt) Ltd v Dept of Education for Northern Ireland (No. 2) and
McLaughlin & Harvey Ltd v Dept of Finance and Personnel (No. 2) [2008] CILL 2643 NI QBD
CILL provided short notes on applications for injunctions to prevent the award of contracts to the tenderer chosen by the awarding authority in three Northern Ireland cases. Two of the three have now proceeded to full trial. In the Henry Brothers case, the contractor succeeded in its case, having failed to secure a place in a framework agreement for schools modernisation. The contractor had alleged that the government had wrongly used the tenderers' fee percentages as the sole commercial criterion for award. Coghlin J held that "the original decision to rely on the percentage fees and bands was based upon an incorrect factual assumption sufficient to amount to a manifest error". The award had thus been made unlawfully. In the McLaughlin & Harvey case, the client's tender evaluation panel had not been selected at the tender stage. When it was formed, it drew up an evaluation sheet with additional weightings for sub-categories. Crucially, these had not been previously disclosed to the tenderers, nor were they predictable. This was a breach of the transparency requirements of the Public Contracts Regulations 2006.

Contract award injunction refused

McLaughlin & Harvey Ltd v Dept of Finance and Personnel [2008] BLR 603 NI QBD
This is the report of the application for an injunction by the contractors to prevent the award of a framework agreement by a Government Department. It was reported in CILL. The injunction was refused on the balance of convenience because damages would be an adequate remedy and because an injunction would delay the commencement of public works.

Note that the full trial has now been decided and McLaughlin & Harvey were successful in the challenge to the award: see above in this section.

No duty of care to tenderers

Design Services Ltd v Canada [2008] BLR 571 Supreme Court of Canada
Potential sub-contractors/consultants failed in their action in the tort of negligence against the government client. They alleged that the client had awarded a contract unlawfully, because the tender was non-compliant. The Supreme Court of Canada held that the client did not owe a duty of care to potential sub-contractors not to cause them economic loss. The sub-contractors were not part of a joint venture, as they had contended, and the creation of a new duty of care between owners and potential sub-contractors in the tendering process was not justified.

Scope of collateral warranty

Glasgow Airport Ltd v Kirkman & Bradford [2008] Con LJ Vol. 24 No. 8 749 Court of Session Inner House
Already reported in BLM, consulting engineers Kirkman & Bradford sought unsuccessfully to argue that the collateral warranty they had executed should not extend to consequential loss. The wording referred to "liability for costs" and the court held that this would include consequential loss. Express provision would be necessary to restrict liability to direct costs and to exclude consequential loss.

Construction Law Vol. 19 Issue 10 December 2008
contains the following articles:

PFI projects: the good, the bad and the ugly
by Emelita Robbins, Herbert Smith

No easy way to explain some ideas
by Michael Phipps, Thurston Consultants

Bonds and guarantees for security
by Hamish Lal and Emily Busby, Dundas & Wilson

The rise and rise of limitation clauses
by John Warchus, Shadbolt & Co

Olympian task for the NEC
by John Wright, JD Risk Associates

Immigration law and the construction industry
by Edward Goodwyn and Michael Ryley, Pinsent Masons

Construction Newsletter November/ December 2008
contains the following articles:

Projects which fail to reach completion

by Katie Graham, Stephenson Harwood

Getting paid
by Paul Newman, 3 Paper Buildings


Restitution claim fails

Matthew Lumbers v W Cook Builders Pty Ltd [2008] BLR 581
The clients, Lumbers, succeeded in their appeal against the finding of the Supreme Court of South Australia upholding a claim by W Cook Builders, the sub-contractor employed by W Cook & Sons, the main contractor. Lumbers had paid all sums requested to W Cook & Sons, which had gone into liquidation. W Cook Builders, which had been appointed without the clients' approval, had received nothing from W Cook & Sons and sought payment directly from the client, on the basis of restitution for unjust enrichment. The High Court of Australia would not allow the contractual framework to be disregarded in deciding on restitution.

Note the relationship with the decision of the Hong Kong Court of Appeal in Yew Sang Hong v Hong Kong Housing Authority noted in the December 2008 issue.

Disclosure and ethics

The duty to disclose: a clash of law and morality
by Shy Jackson, Pinsent Masons, Construction Law Journal [2008] Vol. 24 No. 8 p.675
This article is based on a Society of Construction Law essay and it deals partly with the SCL's work on Ethics in Construction Law. It is a successor to the author's 'Good faith in construction law: will it make a difference and is it worth the trouble?' published in 2007 Con LJ. It deals with both duties of disclosure at the contract negotiation and formation stages and in post-contractual disputes. It considers the present law and exceptions to the general rule, including insurance law and partnership law. There are comments on the relationship between the duty to disclose and duties under the standard forms of contract.

See J Murphy & Sons v Johnston Precast under Keating Chambers Reported Cases on alleged breach of implied term in respect of supply of pipe for water main.

Construction Law Vol. 19 Issue 10 December 2008
contains the following articles:

Really, I would like to litigate
by Paul Newman, 3 Paper Buildings

When is a cost not a cost?
by John Sheils, Shadbolt & Co


Real danger needed for nuisance

Birmingham Development Co. Ltd v Tyler [2008] BLM Vol. 25 No. 10 CA
Already reported in BLR, the Court of Appeal held that it was insufficient for an action in nuisance that the claimant was fearful of the consequences of the defendant's actions. It was necessary that the fear should be well-founded, meaning that the activities were actually dangerous and constituted a nuisance. The claimant's appeal was dismissed.

Party Wall Act award

Rodrigues v Sokal [2008] TCLR 11 TCC
The court held that an award delivered by a third surveyor appointed by the parties' surveyors was conclusive and so precluded any further litigation which sought to question its content. The owners of the neighbouring property sought to maintain claims that the structural stability of their property was threatened and nuisance caused by interference with drainage and other aspects. The judge held that the Act procedure superseded the common law procedure and could not be circumvented by departing from the award.


TCC jurisdictions

Vitpol Building Service v Samen [2008] BLM Vol. 25 No. 10 TCC
The court was asked to decide as a point of principle whether the TCC has jurisdiction to decide a dispute as to the existence and/or terms of a contract where the answer would determine whether or not the claimant could go to adjudication in circumstances where no adjudication was commenced, but where the pre-action protocol process was complete. The judge had to decide whether the parties had adopted the JCT IFC with its adjudication provisions, or would be dependent on statute, in which case there would be no right to adjudicate because of the residential occupier exception. In the result, the court's jurisdiction was held not to be limited by the TCC Guide and would embrace decision of the point on existence of the contract.

See Gwelhayl v Midas Construction under Keating Chambers Reported Cases on pre-action disclosure and delivery up.

Capping in group litigation

Claimants appearing on the Register of the Corby Group Litigation v Corby Borough Council [2008] EWHC 619 TCC
The CA's decision on an attempted strike-out in this group litigation. The claimants alleged that remediation works carried out for the Council had caused birth defects. This is the report of a hearing on the fixing of an overall costs cap. The court rejected the Council's suggestion of a provisional costs cap and decided that 5% allowance on a cap would be adequate to deal with the unavoidable uncertainty.

Consent order costs

Richardson Roofing Co. Ltd v Ballast plc [2008] TCLR 12 TCC
The claimant had made a loss and expense claim against a main contractor, which had then issued a claim against the architects (the 4th party). This hearing was a cost application by the architects against the claimant, following the making of a consent order. Both parties gave very different versions of the meaning of the consent order. The judge directed that the costs judge should construe the consent order in accordance with his findings on the facts, as to what constituted costs thrown away.

Sham transactions

Sham transactions
by John Vella, University of Oxford, Lloyds Maritime and Commercial Law Quarterly 2008 Part 4 November p.488
Noting that courts can look beyond both the form and the legal substance of a transaction, the author considers the relevance of intention to enforce and actual enforcement in searching for the "true" nature of the transaction i.e. what was intended. He also considers and rejects the notion of "pretence" as a variant of "sham".

Lloyd's Maritime and Commercial Law Quarterly 2008 Part 4 November
contains the following case-notes:

Enforcing and reinforcing an English judgment
(on Masri v Consolidated Contractors)

Retention of title and implied authority to pass title to sub-buyers
(on Fairfax v Capital Bank)

The Hong Kong Fir docks in Australia
(on Koompahtoo v Sanpine)

Unjust enrichment and contract
(on Lumbers v Cook)

The death of proprietary estoppel
(on Yeoman's Row v Cobbe)

Pre-action Protocol

The Pre-action Protocol for Construction and Engineering Disputes – satisfactory performance?
by Kevin Barrett, Construction Law Journal 2008 Vol. 24 No. 8 p.687
The author sets the scene with the introduction of the Protocol, the review process and the amendments in 2007. He adduces anecdotal evidence as to cost and as to poor practice by some parties. He advocates systematic research into practice. The main reported cases are reviewed.


Gwelhayl Ltd v Midas Construction Ltd [2008] CILL 2637 TCC
The client became involved in a final account dispute with the contractor and sought pre-action disclosure of documents from Bailey, the contract administrator. The court refused to order pre-action disclosure since no arguable claim existed against Bailey. However, Bailey was ordered to deliver up documents actually belonging to Gwelhayl, although this was subject to a payment into court of outstanding fees, which gave Bailey a lien over them.
Jonathan Lee

Kier Regional Ltd v City and General Holborn Ltd (No. 2) [2008] CILL 2639 TCC
The case, already reported in Adjudication Law Reports, concerns an attempt by the applicant contractor, to enforce a judgment against the respondent owner through an interim third party debt order. Kier obtained an adjudication order against City & General for loss and expense due to delays in a development. Kier sought enforcement of the award, which City & General had resisted, by use of a third party debt order against City & General's joint venture partner, who had provided assistance in purchase of the property. The third party resisted the debt order successfully as there was no actual debt due to the owner. Even if there had been, the judge would have exercised his discretion to refuse to grant the order, since an arbitration award between the parties was pending.
Adam Constable

Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047 TCC (LAWTEL)
The claimant sub-contractor succeeded in enforcing the decision of an adjudicator against the defendant main contractor. The main contractor had argued that there were disputes under at least 3 sub-contracts, which did not all have adjudication provisions, so that the adjudicator had no jurisdiction. The court held that the adjudicator was entitled to decide the question as to whether there was more than one contract or one varied by agreement, which he had done.
Gaynor Chambers

J Murphy & Sons Ltd v Johnston Precast Ltd [2008] EWHC 3024 TCC (LAWTEL)
The defendant sub-contractor was held not to have breached any duty to the main contractor when a pipe it had manufactured and supplied burst. The sub-contractor had not been informed of the installation method to be used, which was the cause of the failure, nor was there any breach of a duty to warn the contractor of the suitability of the pipe for that method of installation.
Nerys Jefford QC

Balfour Beatty Construction (Northern) Ltd v Modus Corovest (Blackpool) Ltd (2008) EWHC 3029 TCC LAWTEL
The contractor obtained summary judgment to enforce an adjudicator's decision in its favour against the respondent owner. The owner failed in attempts to obtain summary judgment for liquidated damages and to set off that claim against the sums owed to the contractor under the adjudication decision.
Stephen Furst QC
Piers Stansfield

Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] CILL 2633 TCC
After two adjudications on delay issues between the parties, a different adjudicator was appointed to hear a third adjudication. Benfield failed to obtain enforcement of his decision on the ground that the disputes were substantially the same and also on the ground of issue estoppel. The case contains important consideration of Quietfield v Vascroft (Matthew Holt and Abdul Jinadu) and HG Construction v Ashwell (Finola O'Farrell QC and Matthew Holt)
Piers Stansfield

Birmingham City Council v Paddison Construction Ltd [2008] BLR 622 and [2008] BLM Vol.25 No.10 TCC
The Council successfully obtained declarations to the effect that a second adjudication commenced by the contractor Paddison on a loss and expense claim was on the same dispute as that decided under the first adjudication between the parties. The adjudicator would therefore have no jurisdiction in the second adjudication and would be obliged to resign.
Jessica Stephens

Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 6) [2008] EWHC 2220 and 2280 Litigation Letter Vol. 27 No. 10 December 2008
The Litigation Letter carries extracts from the judgments in both the substantive case and the costs hearing in the Wembley Stadium steelwork subcontract dispute. The focus is procedural rather than related to the liability issues between the parties. The complex reasoning, relating to the parties' conduct in relation to making and refusing offers of settlement, is set out in explaining the costs order made to Multiplex.
Paul Buckingham
Adrian Williamson QC
Gideon Scott Holland
Simon Hargreaves
Alice Sims
Lucy Garrett

This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb 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.

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.

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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.