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


Oral Contract And Interest

Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2009] TCLR 1 TCC

A sub-contractor failed to obtain summary judgment to enforce an adjudicator's decision, since the court could not summarily resolve the issues as to whether there was an oral agreement for the design which would not comply with s.107 HGCR Act. Following Carillion Construction & Devonport Royal Dockyard (Stephen Furst QC and Louise Randall), the adjudicator had no power to award interest.

See Kier Regional v City and General (Holborn) (No 2) under Keating Chambers Reported Cases on an attempt to use a third party debt order to enforce an adjudication award.

See Westwood Structural Services v Blyth Wood Park under Keating Chambers Reported Cases on summary enforcement of adjudication decision for sums alleged not to be due at termination.

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.

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

See Quartzelec v Honeywell Control Systems under Keating Chambers Reported Cases on an adjudicator's failure to take into account a defence raised.

See YCMS v Grabiner under Keating Chambers Reported Cases on exceeding slip rule by recalculation, invalidating adjudicator's decision.

See Bovis Lend Lease v Trustees of the London Clinic under Keating Chambers Reported Cases on crystallisation of a dispute.

Company Voluntary Arrangement

Mead General Building Ltd v Dartmoor Properties [2009] BLM Vol. 26 No. 3 TCC

The defendant client sought to resist enforcement of an adjudicator's decision on the ground that the claimant contractor was subject to a CVA and so might be unable to repay money in arbitration. The TCC held that, while a CVA was a relevant factor to be considered, it was also relevant that the CVA was a result of the defendant client's failure to pay the contractor sums owed. The CVA supervisor took the view that the contractor was a viable concern which could trade its way out of trouble, which was also relevant. On the facts, no stay should be granted and summary judgment was confirmed.

See VGC Construction v Jackson Civil Engineering under Keating Chambers Reported Cases on attempt to resist enforcement of adjudicator's decision on grounds that claim was nebulous and ill-defined or had been withdrawn.

Alleged Bias In Nomination

Makers UK Ltd v Camden London Borough Council [2009] 120 Con LR IGI TCC

Already reported in CILL, 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 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.

Adjudication And The CPR

Walter Lilly & Co. Ltd v DMW Developments Ltd [2009] TCLR 3 TCC

This case considers the extent to which the TCC can be used under CPR Part 8 for a declaration as to what constituted a breach of contract. The judge granted a declaration as to whether the fading of wood was capable of constituting a breach as the adjudicator found. A CPR Part 8 application was not suitable for arguing whether such fading had taken place, as this would amount to an appeal against the adjudicator's decision.


Arbitration Law Monthly Vol. 9 No 2 February 2009

contains the following articles:

Judicial Support
Steamship Mutual Underwriting Association v Sulpicio Lines
on anti-suit injunctions.

Stay Of Proceedings
Ardentia v British Telecommunications
on tiered dispute resolution clauses.

Crest Nicholson (Eastern) v Western
on scope of agreement and costs under NHBC scheme.

Party compliance with arbitral procedures
TAG Wealth Management v West
on dismissal of a claim for non-compliance.

Enforcement Of Award
public policy ground for challenge of award.

Insolvency and arbitration
Syska v Vivendi Universal
on the effect of insolvency proceedings.

Arbitration Law Monthly Vol. 9 No 3 March 2009

contains the following articles:

Arbitration: Enforcing On English Award
on Colliers International Property Consultants v Colliers Jordan Lee Jafaal

Supporting Foreign Arbitrations
on IETI Euro Telecom International v Republic of Bolivia
(freezing injunction in support of foreign arbitration).

Enforcement of arbitration awards
on Orascom Telecom Holding v Republic of Chad (state immunity)

The Agreement To Arbitrate
on Ace Capital v CMS Energy Corporation
(effect of service of suit clause).

Serious Irregularity
on O'Donoghue v Enterprise Inns
(failure to hold an oral hearing)

Arbitration Law Monthly Vol. 9 No. April 2009

contains the following articles:

Anti-Suit Injunctions
on the major ECJ decision in Allianz v West Tankers.

Breach Of Arbitration Clause
on CMA CGM v Hyundai Mipo Dockyard
(effect of foreign judgment on arbitrators).

International Arbitration Law Review Vol. 12 Issue 1 2009
contains the following articles:

Arbitration In The Dubai International Financial Centre: A Promising Law, But Will It Travel Well?
by Mark Beeley, Vinson & Elkins

Global Arbitration Review Vol. 4 Issue 1 2009
contains the following articles:
2008 – The Year In Figures
gives statistics for years 2006, 2007, 2008 for arbitrations in Austria, Germany, Hong Kong, ICC, ICDR, ICSID, LCIA, Singapore, Stockholm and Switzerland.

Bursting The Ragan Myth: Things It's No Longer Fair To Believe About Japan
by Peter Godwin, Herbert Smith, Tokyo.

Arbitration Vol. 75 No 1 February 2009
The Chartered Institute Of Arbitrators Journal
contains the following articles:

Confidentiality And Integrity In International Commercial Arbitration Practice
by Vijay Bhatia, Christopher Candlin and Rajesh Sharma, City University of Hong Kong.

Recommendations On Public Policy In The Enforcement Of Arbitral Awards
by Winnie Ma, Bond University.

The Process From Void To Valid For Agreements To Mediate
by Erich Suter, Park Chambers.

The Nature And Enforceability Of ICSID Provisional Measures
by Zannis Mavrogordato and Gabriel Sidere, CMS Cameron McKenna, Bucharest.

Arbitration And Insolvency: English And Swiss Perspectives
by James Hargrove and Vanessa Liborio, Hogan & Hartson.

Competence – Competence
by Doug Jones, Clayton Utz, Sydney.

Lloyd's Maritime And Commercial Law Quarterly Part 1 February 2009
contains the following case commentary:

The Limits Of Confidentiality In Arbitration
by Amokura Kawsharu, University of Auckland (on Emmott v Michael Wilson & Partners).

Construction Law Journal 2009 Vol. 25 No 1
contains the following notes:

ADR Clauses In Irish Government Public Works Contracts
by Nicola White

Hong Kong Arbitration Law Reform

ICC To Open New Offices In Asia
(Hong Kong and Singapore).

Construction Law Journal 2009 Vol. 25 No 1
contains the following articles:

Arbitrators Taking Procedural Control – A Good Idea Or Not?
by His Honour Judge Toulmin, Technology and Construction Court

Dispute Avoidance In International Construction Projects: The Use Of Outside Counsel As Contract Manager
by Elliott Geisinger, Schellenberg Wittmer, Geneva.

Techniques For Handling Cross-Cultural Tribunal
by Mark Raeside QC, Atkin Chambers.

These papers were delivered at the Chartered Institute of Arbitrators European Conference, Istanbul, May 2008.

s.103 Challenge To ICC Award

Dallah Real Estate v Ministry of Religious Affairs, Government of Pakistan [2009] 121 Con LR 138 Commercial Court

The Commercial Court refused leave to the Saudi Arabian claimant to enforce an ICC arbitration made in Paris against the Government of Pakistan. The law of the contract was Saudi law, but under s.103(2)(b) of the Arbitration Act 1996 enforcement of an award may be refused under the New York Convention if the arbitration agreement is not valid under the law to which the parties subjected it, or under the law of the country where the arbitration was made. Under French law, because the position under the Constitution of Pakistan on making of government contracts without the President's name was uncertain, it was not clear that the Government of Pakistan was bound by the arbitration clause. Accordingly, the English court refused to enforce the award.

Partial Enforcement Of Award

Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd [2009] BLR 71. CA

The Court of Appeal upheld the Commercial Court's decision that there is no objection in principle to enforcement of part of an arbitral award, provided the part to be enforced can be ascertained from the face of the award, and judgment given in the same terms as in the award.

See Owen Pell v Bindi (London) under Keating Chambers Reported Cases on natural justice in an expert determination.


Challenge To Contract Award

McLaughlin & Harvey Ltd v Department of Finance and Personnel [2009] TCLR 2 (NI QB)

The full trials in this and the Henry Bros case have now taken place, resulting in success for the contractors in their respective challenges to the award of Government contracts. This TCLR report covers only the contractor's application for an interim order suspending the tender procedure. The application failed because the court was not satisfied that damages would be an inadequate remedy. Subsequently, it was held that the award was invalid because the client's tender panel, not selected at the tender stage, had drawn 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.

Construction Law Vol. 20 Issue 2 March 2009

contains the following articles:

Goodbye To Ingress And Egress
by Michael Phipps, Thurston Consultants (on JCT 2005).

New Pre-Construction Services Contracts
by Will Buckby, Davies Arnold Cooper

PPC 2000 And The Arup Report
by David Mosey and Peter Kitson, Trowers & Hamlins

Finding The Right Measures For The Downturn
by Paul Newman, 3 Paper Buildings

Letters Of Comfort

Letters Of Comfort Compared And Contrasted With Guarantees, Bonds And Other Instruments By Cecily Davis and Emma Joyce, DLA Piper, London, Construction Law Journal 2009 Vol. 25 No. 1 p.24

The article considers the varying legal effects of letters of comfort, from non-binding statements of intention to binding contractual allegations. As well as looking at advantages and disadvantages of use of letters of comfort, the authors compare them with bonds, guarantees and standby letters of credit.

Successful Tender Challenge

McLaughlin and Harvey Ltd v Department of Finance and Personnel (No. 2) [2009] BLR 104 NIQB

This is the BLR report of the main judgment in this case, already reported in CILL. The first report was of the interlocutory hearing when the contractor failed to get an injunction to prevent the allocation of its Framework Agreement place to another tenderer. In this judgment, it was held that the provision of additional criteria and weightings after tenders had been submitted was a breach of Regulation 47 of the Public Contracts Regulations 2006. The (No. 3) judgment reported in CILL and noted in the February 2009 issue concerned the appropriate remedy, namely that the award of places in the agreement should be set aside.

Another Successful Tender Challenge

Henry Bros. (Magherafelt) Ltd v Department of Education for Northern Ireland (No. 2) [2009] BLR 118 NIQB

This is the BLR report of the main judgment in this case, already reported in CILL. There had already been reports of the interlocutory hearing, in which the contractor (Henry Bros.) failed to obtain an injunction to prevent the allocation of its place in a Framework Agreement to another tenderer. In the main hearing, the contractor succeeded in its argument 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 and this was a breach of the Public Contracts Regulations 2006.

Letter Of Intent And Formation Of Contract

RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co [2009] BLM Vol. 26 No. 3 CA

This is the report of the appeal from the TCC's decision. The defendant dairy manufacturer wished to retain the claimant to supply services for automation of processes and equipment. After providing some quotations, the claimant was awarded the job and the defendant issued a letter of intent, confirming its wish to proceed with the project "as set out in the offer" subject to finalisation of price and completion date and using an amended version of the MF/1 form of contract, to be executed within four weeks. Work started as negotiations proceeded and the letter of intent was extended for three months. A final draft contract was produced but never signed, leading the claimant to commence proceedings. The TCC had held that, after the lapse of the latter of intent, the parties had reached full agreement on the obligations relating to the work. The CA held that MF/1 could not become operative until signed and thus no contract had been concluded after the letter of intent lapsed. The appeal was allowed.


Construction Law Vol. 2 Issue 2 March 2009

contains the following articles:

Practical Steps To Prepare For Claims
by Suzannah Newboult, Eversheds

Recession To Force Claims Culture Change
by Michael Kenyon, Hill International

The Joint Names Jungle
by John D. Wright, JD Risk Associates

Homemade Amendments Fail To Impress
by John Sheils, Shadbolt & Co (on Balfour Beatty v Modus Corovest: Stephen Furst QC and Piers Stansfield)

Construction Law Journal 2009 Vol. 25 No. 2

contains the following articles:

Apportionment And The Common Law: Has City Inn Got It Wrong?
by Brodie McAdam, University of Salford

Contractual Responsibility Under Kuwaiti Build Operate Transfer Contracts
by Dr. Yasser Ahmed Kamel El Serafy, University of Cairo

Liquidated Damages In The Malaysian Standard Forms Of Contract: The Law And Practice
by Mohd Danuri, Che Munaaim and LC Yen, University of Malaya

The Impact Upon Contractual Performance Of Unforeseen Events – Generally And Under The Law Of Georgia
by Ketevan Betaneli

Oral Contract Between Friends

Richard Thompson v James Charlesworth [2009] LAWTEL TCC

Friends had discussed the installation of an electrical system by one for the other. The claimant electrician argued that there was a design and build contract based on reasonable remuneration. The defendant home owner argued that there was a fixed price contract which could therefore not be exceeded by additional costs. On the facts, the court found that there was no fixed price contract and the claimant succeeded in his claim for additional payment.

Minimum Order Appeal Allowed

Port of Tilbury (London) Ltd v Stora Enso Transport & Distribution Ltd [2009] BLM Vol. 26 No. 2 CA

This is an appeal against the TCC decision. A paper handling services contract made provision for minimum orders and payment if the orders fell below the minimum. The order was below the minimum but the defendant refused to pay, alleging a right to set-off. The TCC gave this a reasonable chance of success and refused summary judgment. The CA, allowing the claimant's appeal, held that the minimum order provision should be enforced, without set-off, obliging the defendant to pay now and dispute later.

No Re-Opening Of Invoices

Furmans Electrical Contractors v Elecret Ltd [2009] LAWTEL CA

In a dispute over payment of a sub-contractor, the CA held that paid invoices should not be re-opened, since they had been paid after checking by site supervisors. The question was what was a reasonable sum for the sub-contractor to receive on its outstanding unpaid invoices.

Liquidated Damages In Brunei
Lim Ting Guan v Goodlink Enterprise [2009] Con LJ Vol. 25 No. 1 Brunei Court of Appeal

Developers failed to recover liquidated damages against contractors for late completion. This was partly on the basis of the prevention principle, but partly on an interpretation of Brunei's Contracts Act, based on Indian law. This required a party seeking to enforce a liquidated damages provision to show that it has suffered some loss or damage. Since the developer had provided no evidence of this, its liquidated damages claim could not succeed.

See Reinwood v L. Brown & Sons (No. 2) under Keating Chambers Reported Cases on effect of notice of determination and waiver.

See London & Regional (St. George's Court) v Ministry of Defence under Keating Chambers Reported Cases on whether disputed claims had been certified and on no-loss argument.

Liquidated Damages

Liberty Mercian Ltd v Dean & Dyball Construction Ltd [2009] BLM Vol. 26 No. 3 TCC

Already reported in BLR, the TCC upheld a sectional completion agreement used with JCT 98 sectional completion amendments despite a discrepancy between "date for completion" and "date of completion", which the contractor said made it void for uncertainty, thus setting time at large. The liquidated damages provisions were not a penalty as both parties recognised the effect of delay in the first section on the subsequent sections of the work, even though this had not been made explicit. The contractor was not entitled to an extension of time for its delay.

Practical Completion

Menolly Investments v CEREP SARL [2009] EWHC 516 (Ch.) LAWTEL

The claimant and defendant both sought declarations regarding certificates of practical completion under JCT 98. The court's decision was that works to provide level access to the building were within the definition of the works and thus part of the Contractor's obligations. The client's representative had thus been incorrect in certifying practical completion when this element had not been carried out, and the certificate was invalid. However, the claimant was estopped from challenging the certificate on the level access point since this had not been raised until very late on, before which both parties had conducted themselves as if practical completion was imminent.


Injunction To Restrain Nuisance

Watson v Croft Promo-Sport [2009] BLM Vol. 26 No. 2 CA

A planning authority had granted planning permission to the defendant to increase the use of land as a motor racing venue. The Court of Appeal affirmed the principle that the planning authority could not authorise a nuisance. On the facts, the planning permission had not changed the character of the neighbourhood and there was a nuisance. Whereas the first instance judge had granted damages and refused an injunction, the CA granted the injunction, although on terms; the defendant would not be prevented from holding motor racing as previously but would be constrained in the levels of activity, so as to avoid the nuisance.

Valuer's Breach Of Duty

Platform Funding Ltd v Bank of Scotland plc [2009] 120 Con LR 201 CA

The lending institution succeeded in having upheld judgment in its favour against valuers retained to value a house under construction. The plot inspected was the wrong one and the lenders argued successfully that this was a breach of an unqualified obligation to inspect the particular property being valued. The Court of Appeal upheld the judge's decision, despite a dissenting judgment from the Master of the Rolls.

Res Ipsa Loquitur

Drake & Harbour [2009] 121 Con LR 18 CA

Already reported in BLR, the action was for damages arising from a fire in a private house. It had occurred during the night after re-wiring work was carried out. The claimant owner had vacated the house to allow the contractors to do the work. The judge applied the maxim res ipsa loquitur in the absence of definitive proof as to the cause of the fire, since on the available evidence it was more likely than not that some negligent act or omission of the contractors had caused the fire. The CA, without definitively resolving the application of res ipsa loquitur, upheld the judge's finding on causation in favour of the claimant.

Buncefield Disaster

Principles of apportionment in contribution cases
by Nathy Dunleavy, Law Quarterly Review Vol. 125 April 2009

Considers the Commercial Court's 2008 decision of West London Pipeline and Storage v Total UK on apportionment of liability under the Civil Liability (Contribution) Act 1978. The article refers to Warwicker v Hok (Justin Mort) and derives from the 2006 Buncefield explosion.

See now also on the Buncefield litigation: Colour Quest v Total Downstream [2009] EWHC 540
on test for vicarious liability of employers based on the "right to control".

Defective Premises Act

Bole v Huntsbuild Ltd [2009] EWHC 483 LAWTEL TCC

Damage to a property caused by inadequate foundation depth following removal of trees on the site constituted a breach of the Defective Premises Act 1972. On the facts, the foundation depth did not conform to the NHBC standards and the movement and cracking were sufficient to render the house unfit for human habitation. Both contractor and consultant engineer were in breach of the Act. While noting that unfitness for habitation is a matter of fact in each case, the court noted that s.604(1) of the Housing Act 1985 provides a useful check-list of the kind of defects which might be sufficiently fundamental. Catlin Estates v Carter Jonas (Adrian Williamson QC and Piers Stansfield) was considered on limitation and treated as "superseded" (both cases were heard by the same judge).

Duty Of Care In Sub-Contractor Design

Gunston v Lawley [2009] 121 Con LR 196 Supreme Court of Victoria

Byrne J. set out the position, at least in Victoria, (and presumably Australia as a whole) on the tortious duty of care between a sub-contractor, in this case an architectural draughtsman, undertaking design work, and a future owner of the building. In the result, there was no such duty on the facts. The Con LR Editors note the judge's guidance on when a duty of care would be more likely to be established e.g. where sub-contractor nominated, where parties in close relationship, where direct dealings between parties, where sub-contractor engaged in skilled and technical role. Conversely, a duty of care would be less likely where the owner is a developer, is engaged in construction work or uses a main contractor. Cases like Bryan v Maloney (especially) and Woolcock Street Investments v CDG emphasise the disparity between English law and that in other common law jurisdictions in this area.

Damages In Nuisance

Dobson v Thames Water Utilities Ltd [2009] BLM Vol. 26 No. 3 CA

The first instance decision in the TCC reported in BLR confirmed that claims of odours and insects arising from a sewage works could only be brought under the Water Industry Act and not in nuisance nor under the Human Rights Act, following Marcic v Thames Water. A nuisance claim would only apply to insects on a works site rather than a water facility. The CA decision covered specific points on damages for the limited nuisance claim. A child could not recover as nuisance requires some interest in the property affected; damages cannot be recovered on behalf of others. They might recover under the Human Rights Act, although a person recovering in nuisance would be unlikely to get anything additional through this route.

NB: See also further CA decision in Times Law Reports 3 April 2009.

See Galliford Try Infrastructure v Mott MacDonald under Keating Chambers Reported Cases on alleged negligent misstatements in tort by client's engineer to design and build contractor.


Interest On Late Payment

Rurtle Plant Hire Ltd v Secretary of State for EFRA Times Law Reports 4 March 2009 CA

The Court of Appeal overruled the TCC's decision which had denied the claimant contractor interest on payments by the defendant client. The CA rejected the argument that errors of calculation in the invoices submitted would prevent the application of the Late Payment of Commercial Debts (Interest) Act 1998.

Construction Newsletter January/ February 2009
contains the following articles:

"When The Walls Come Tumbling Down!" – The Impact Of Insolvency For Construction Companies

by David Lacey and Katie Graham, Stephenson Harwood

Commercial arbitration – Part 1
by Paul Newman, 3 Paper Buildings

Damages Where Defendant Absent

Transafrik International Ltd v Venus Corporation Ltd [2009] 121 Con LR 78 TCC

The claimant aircraft owner obtained judgment against the defendant which had failed to complete repairs to the aircraft which it had undertaken to do. The defendant did not appear at the damages hearing but the court nevertheless disallowed some of the items claimed. The judge pointed out that the court is not simply a rubber stamp and that the burden of proof remains upon the claimant. The Con LR editors note that "whilst the absence of the defendant in an assessment of damages will inevitably ease a claimant's path, it should expect the court to give close, if not prolonged scrutiny of the damages claimed".

Recoverability Of Interest On Loans

Robertson Quay Investment Pte Ltd v Steen Consultants Pte Ltd [2009] 121 Con LR 85 Singapore Court of Appeal

The Singapore Court of Appeal, providing a useful review of the common law authorities, held that in principle additional interest incurred on loan finance as a result of delay was not too remote to be recoverable as damages for breach of contract under Hadley v Baxendale, which also represents the law in Singapore. However, on the facts, the client had not adequately quantified its loss merely by reference to delay in opening its hotel.

Legal Advice Privilege

Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs [2009] BLR 80 TCC

The claimant (in liquidation) brought proceedings alleging that a settlement agreement it had entered into with DEFRA following a mediation should be set aside as obtained by economic duress. DEFRA contended that this necessitated considering the state of mind of the claimant's Managing Director and sought disclosure of legal advice given to him, arguing that the economic duress claim led to an implied waiver of legal advice privilege. The TCC held that pleading economic duress did not impliedly waive legal advice privilege.

Quantum Meruit And Contract

Quantum meruit, estoppel and the privacy of contract

Law Quarterly Review Vol. 125 April 2009
by Joshua Getzler

This is an extended case note on the House of Lords case of Yeoman's Row Management v Cobbe and on the High Court of Australia's decision in Lumbers v W. Cook Builders.

In Yeoman's Row, a property development case rather than one on construction, the House of Lords held that proprietary estoppel would not offer a route to a remedy protecting expectations or reliance, awarding a quantum meruit to cover the cost of pre-contractual services. In Lumbers, the court held that the law on unjust enrichment should not be allowed to change obligations and assumptions of risk brokered within contractual relationships. Both cases reversed lower court decisions. While the specific issues and contexts of the cases were different, both provide useful insight into the development and restriction of restitutionary remedies.

Measure Of Damages For Art And Staff Time

Aerospace Publishing Ltd v Thames Water Utilities Ltd [2009] Con LJ Vol. 25 No. 2 121 CA

Following escape of water, Thames Water was held liable under the Water Industry Act for damage to the claimants' archive, damaging artworks, photographs and historical material. Thames Water argued for a quantum of £300,000 as the difference in value between damaged and undamaged value of the archive. The judge, upheld by the CA, preferred the reinstatement cost of nearly £3 million as the appropriate measure. This might be different if the business was not to continue. Cost of staff time was allowed and there is considerable discussion of this issue.

See Bridge v Abbey Pynfold below on this last point.

Measure Of Damages For Staff Time

Bridge UK.comLtd v Abbey Pynford plc [2009] Con LJ Vol. 25 No. 2 150 TCC

This is a 2007 decision of Ramsey J. presumably reported in Con LJ to continue coverage of issue of staff time component of damages (see Aerospace Publishing case above). Executive time was allowed based on memory (i.e. without records) but subject to a 20% discount for the uncertainty of the process.


Bovis Lend Lease Ltd v Trustees of the London Clinic [2009] BLM Vol. 26 No. 2 TCC

The applicant contractors succeeded in obtaining enforcement of an adjudicator's decision in their favour. The respondents argued that there was no crystallised dispute in respect of a loss and expense claim based on new expert evidence, so that the adjudicator would not have jurisdiction, Mr. Justice Akenhead doubted whether the decision in Carillion Construction v Devonport Royal Dockyard (Stephen Furst QC and Louise Randall) had survived the CA decision of AMEC Civil Engineering v Secretary of State (John Marrin QC, Sarah Hannaford, Simon Hughes).
Finola O'Farrell QC

YMCS Ltd v Grabiner [2009] EWHC 127 TCC LAWTEL

Although correction of an arithmetical error in an adjudicator's decision would be allowable under the equivalent of the "slip rule", where the adjudicator had gone further and had recalculated sums using a different method (with a further error), this would invalidate the revised decision. However, the contractor's application for summary judgment was granted in respect of the second decision, which was unaffected by the errors.
Gaynor Chambers

Air Design (Kent) ltd v Deerglen (Jersey) Ltd [2009] CILL 2657 TCC

Already reported in BLM, 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

Balfour Beatty Construction Northern Ltd v Modus Codest (Blackpool) Ltd [2009] CILL 2660 TCC

Already reported in BLM, 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

Quartzelec Ltd v Honeywell Control Systems Ltd [2009] CILL 2665 TCC

The adjudicator was held to have breached the rules of natural justice in failing to consider a defence raised by the respondent. This was sufficient for the court to refuse to grant enforcement of the adjudicator's decision.
Fionnuala McCredie

Westwood Structural Services v Blyth Wood Park Management Co. Ltd [2009] BLM Vol. 26 No. 2 and [2009] CILL 2666 TCC

The claimant contractors, Westwood, succeeded in obtaining enforcement of an adjudicator's decision in their favour. The defendant client argued unsuccessfully that they had validly terminated the contract and that sums not owing at that point could not be payable.
Piers Stansfield

Owen Pell Ltd v Bindi (London) Ltd [2009] Con LJ Vol. 25 No. 2 168 TCC

Already reported in BLR, the court granted summary judgment for the enforcement of a RICS-appointed expert determination. There was considered to be no need for the expert to follow the rules of natural justice in his procedure and there was no implied term in the agreement to submit to this effect.
Charlotte Ellis

Galliford Try Infrastructure Ltd v Mott MacDonald Ltd [2009] 120 Con LR 1 TCC

Already reported in CILL , the claimant design and build contractors claimed substantial damages from the client's consulting engineers in relation to the conversion of a building into a commercial and residential complex. It had been expected that the client's engineers would be novated to the contractors, but this had not happened. The contractors maintained that they had been misled as to the amount of work remaining to be done. However, the engineers argued that the requirements for negligent misstatement were not met on the facts, due to absence of reliance and the presence of a valid disclaimer. The full judgment has extensive discussion on recovery of economic loss in tort.
Stephen Furst QC

VGC Construction Ltd v Jackson Civil Engineering [2009] 120 Con LR 178 TCC

The respondent main contractors, Jackson, sought to resist enforcement of an adjudication decision in favour of the applicant sub-contractor VGC. The court, granting VGC's application, rejected Jackson's arguments that there had been a binding agreement to withdraw the claim or that it had been so nebulous and ill-defined as to be incapable of giving rise to a dispute.
Sarah Hannaford QC
Alexander Nissen QC
Samuel Townend

Kier Regional Ltd v City and General Holborn Ltd (No. 2) [2009] BLR 90 TCC

Already reported in CILL, the case 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

Reinwood Ltd v L. Brown & Sons Ltd (No. 2) [2009] 121 Con LR 1 CA

This is a further key element in the litigation which went to the House of Lords in 2008. In this part, the respondent contractor was successful in having upheld the TCC's decision. The CA was satisfied that the contractor had not waived its right to rely on the client's default and so was allowed to terminate its employment. The client's victory in the House of Lords must therefore be seen in the context of this subsequent decision.

Stephen Furst QC
John Marrin QC

London & Regional (St. George's Court) Ltd v Ministry of Defence [2009] 121 Con LR 26 TCC and CA

Con LR reports both the TCC and the appeal in the CA, the latter already reported in BLR. The case concerned preliminary issues in a dispute arising from the refurbishment of offices owned by the Crown Estate and let to the claimant, who had sub-let to the defendant Ministry. The claimant had undertaken to do the works and issues arose as to whether variations required by the defendant had been certified by the claimant's consultants as a binding determination of the defendant's liability and whether the claimant had suffered any recoverable loss and/or was entitled to pursue the claim. The decision of the CA was that the existence of certificates was not a condition precedent to payment, nor were the certificates conclusive of the parties' rights. A settlement agreement did not prevent the claimant from bringing its claim.
Paul Darling QC

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.

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.


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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