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

ADJUDICATION

Adjudicator's Fees

Linnett v Halliwells LLP [2009] BLM Vol. 26 No.4

Halliwells, the client, as respondent in an adjudication, invited the RICS-nominated adjudicator to withdraw for lack of jurisdiction and denied liability for his fees and expenses. Drawing an analogy with arbitration, the court held that a person appointed as adjudicator is entitled to fees and expenses from the parties and the respondent was liable for the fees, even though it objected to the adjudicator's jurisdiction. If it had refused to participate, the position may have been different.

No Apparent Bias From Mediation Role

Andrew Wallace Ltd v Noon [2009] BLR 158 TCC

The defendant, Noon, sought to resist summary enforcement of the adjudicator's decision in favour of the claimant on the ground that the adjudicator had acted in matters involving the claimant. These included an adjudication and a mediation to which the claimant was a party. The court held that complaints of breach of natural justice will only be upheld in the plainest of cases. In this case, a fair-minded impartial observer would have found no such indication. Relevant circumstances were that the adjudicator had no personal knowledge of either party, nor current relationship with either. He was professionally qualified as an arbitrator and appointed by RIBA, not by the parties.

TeCSA Rules

The TeCSA Adjudication Rules
by Peter Sheridan and Dominic Helps
Shadbolts, Construction Law Journal 2009 Vol. 25 No. 3 p.221
The regular Construction Act Review concentrates on the current i.e. 2002 edition of the TeCSA Rules; Dominic Helps was involved in drafting them and both authors are TeCSA members. Noting that some of the features of the Rules are unusual, the authors consider some of the content to be statements rather than rules. There are sections on the powers of TeCSA, the adjudicator's jurisdiction, and some other provisions. There is a special focus on the Scots case of Deko Scotland v Edinburugh Royal JV and extended reference to Shimizu Europe v LBJ

Fabrications (Adam Constable), and Farebrother Building Services v Frogmore (Paul Darling QC).

See Dalkia Energy & Technical Services v Bell Group under Keating Chambers Reported Cases on jurisdiction to rule on incorporation of standard terms in Part 8 proceedings.

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

See Euro Construction Scaffolding v SLLB Construction under Keating Chambers Reported Cases on adjudicator's jurisdiction to decide on his jurisdiction.

See The Dorchester Hotel v Vivid Interiors under Keating Chambers Reported Cases on timetable for adjudication in complex case.

See OSC Building Services v Interior Dimensions Contracts under Keating Chambers Reported Cases on scope of jurisdiction.

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

No Stay For CVA

Mead General Building Ltd v Dartmoor Properties Ltd [2009] CILL 2686 TCC
In enforcement proceedings by Mead, Dartmoor took the point that it ought not to have to pay because Mead was subject to a company voluntary arrangement and so would be unable to repay the money paid should that be the outcome of arbitration. It was held that a CVA could not prevent judgment being entered. It is a relevant factor in deciding whether a stay of execution should be granted but a stay is not automatic just on the existence of a CVA.

ARBITRATION AND DISPUTE RESOLUTION

Alleged Economic Duress In Mediation; Confidentiality Lost

Farm Assist Ltd (in liquidation) v The Secretary of State for the Environment, Food and Rural Affairs (No.2) [2009] EWHC 1102 (TCC)
This case concerns the question whether a mediator can be called as a witness in court proceedings to give evidence of what happened during the mediation. The dispute between the parties concerned an allegation that a settlement was entered into under economic duress. The settlement was entered into as a result of the mediation. In a Case Management Conference, the parties agreed by way of a direction that they could take witness statements from the mediator and put questions to her about matters which would otherwise be the subject of privilege. The mediator sought to have the witness summons served by DEFRA set aside on the basis of the terms of the mediation agreement, confidentiality and privilege.

The judge held that the mediator should give evidence. Any without prejudice privilege in the mediation proceedings existed between the parties only and had been waived by the agreed direction to permit witness statements from the mediator.

In respect of confidentiality of the mediation, the judge held that there was a duty of confidentiality of information between the parties and the mediator which could be enforced by the mediator (in this case this confidentiality was expressly provided in the Mediation Agreement, but the judge stated that the court would impose it in any event). However, although the court would generally uphold that confidentiality, it was subject to an exception where the evidence was necessary in the interests of justice. In this case, the allegation of economic duress concerned what was said and done in the mediation and therefore it was in the interests of justice for the mediator to give evidence.

Staying An Action Under Scots Law

Norwest Developments Ltd v Carfin Developments Ltd [2009] BLR 167 Court of Session Outer House
The court refused the defenders (defendants) a motion to sist the cause (stay the action) pending reference to the Engineer for decision under Clause 66. The BLR commentary deals generally with the relationship between English and Scots construction law, concluding that in some defined areas they are becoming indistinguishable. The judgment also considered the need for a withholding notice under the HGCR Act.

Construction Law Vol. 20 Issue 3 April 2009

contains the following articles:

An opportunity missed?
by Hamish Lal and Emily Busby, Dundas & Wilson (on HGCR Act reform)

Dragon's feathers
by John Sheils, Shadbolt & Co

ICC International Court Of Arbitration Bulletin 2008 Vol.19 No.2

notes the opening of the Hong Kong branch of the Court's Secretariat. It also contains the following articles:

ICC Arbitration Clause for trust disputes

French court decisions on arbitration 2007-2008
by Bernard Audit, Paris II University

Arbitration in China: practice, legal obstacles and reforms
by Fan Kur, ICC

International construction contract disputes: second commentary on ICC awards dealing primarily with FIDIC contracts
by Christopher Seppälä, White & Case, Paris

Extracts From ICC Arbitral Awards In International Construction Disputes

Journal Of International Arbitration Vol. 26 No. 1 2009

contains the following articles:

'Investment' and 'Investor' in Energy Charter Treaty arbitration: uncertain jurisdiction
by Anna Turinou, Federal Court of Appeal, Ottawa

'Back to the future' for investor-state arbitrations: revising rules in Australia and Japan to meet public interests
by Luke Nottage and Kate Miles, Sydney Law School

Overcoming immunity-based objections to the recognition and enforcement in Canada of investor-state awards
by Frederic Bachand, McGill University

Hybrid efficiency in arbitration: waiving potential conflicts for dual role arbitrators in Med-Arb and Arb-Med proceedings
by Jacob Rosoff, Stockholm University

Public policy considerations in international arbitration: costs and other issues: a view from Singapore
by Locknie Hsu, Singapore Management University

Public policy under the Indian Arbitration Act
by Sidharth Sharma, National University of Juridicial Science, Kolkata

Appellate jurisdiction and equitable estoppel
by Jennifer Kirby, Herbert Smith, Paris

Principles of treaty interpretation in the NAFTA arbitral award on Canadian Cattlemen
by Alexander Orakhelashvili

Journal of International Arbitration Vol. 26 No. 2 2009

contains the following articles:

European law and investment treaties
by Markus Burgstaller, Lovells, London

Definition of investment in bilateral investment treaties of South Asian counties and regulatory discretion
by Prabhash Ranjan, National University of Juridicial Sciences, Kolkata

Setting aside foreign-related arbitral awards under Chinese Law
by Lanfang Fei, University of Hong Kong

What weight should be given to the annulment of an award under the lex arbitri? The Austrian and German perspectives
by Gűnther Horvath, Freshfields Bruckhaus Deringer, Vienna

The enforcement of awards annulled in their place of origin
The French and US Experience
by Christopher Koch, Geneva

Arbitration in employment relationships in France
by Beatrice Castellane, Paris

International commercial arbitrations in Ukraine: details do matter
by Yuliya Chernykh, Astapov Lawyers

International Construction Law Review Vol. 26 Part 2 April 2009

contains the following articles:

Disclosure of electronic documents: the issues and guidelines in international construction arbitration
by Troy Harris, King & Spalding, Atlanta

Enforcement of arbitral awards in the People's Republic of China
by Corinne Tay

Steps forward in Egyptian Arbitration Law
by Mariam M. El-Awa, El-Awa, Cairo

South Africa: the dinosaur re-emerges – arbitration clause inseparable
by Patrick Lane SC

See F Ltd v M Ltd under Keating Chambers Reported Cases on dissenting opinions and serious irregularity in an ICC arbitration.

International Arbitration Law Review 2009 Vol 12 Issue 2

contains the following articles:

Who is an arbitrator? A study into the issue of immunity
by Hong-Lin Yu, University of Stirling

Practical considerations regarding certain aspects of electronic disclosure in international arbitration
by Joel Greer, White & Case, Tokyo

Lost at sea or a storm in a teacup? Anti-suit injunctions after Allianz Spa v West Tankers
by Philip Clifford and Oliver Browne, Latham & Watkins, London

Case comment: Louis Dreyfus SAS v Holding Tusculum
by Sophie Nappert, 3 Verulam Buildings (on procedural irregularity under the law of Quebec and Finland)

Arbitration Vol 75 No 2 May 2009
the Journal of the Chartered Institute of Arbitrators contains the following articles and papers:

Sanctity of foreign awards: recent developments in India
by Raghar Sharma, National Law University, Jodhpur

US discovery in aid of foreign or international proceedings: recent developments relating to Title 28 US Code Section 1782
by Jane Wessel and Peter Eyre, Crowell & Moring

International arbitration: how can it deliver on its promise?
by Michael Davison and Nowak Lucja, Lovells

Mediation in arbitration in the pursuit of justice
by Lord Woolf

Forget ADR! Think A or D
by Sir Anthony Evans

Past, present and future perspectives of arbitration
by Karl-Heinz Böckstiegel

Dealing with a multi-tiered dispute resolution process
by Doug Jones, Clayton Utz

Arbitrating with different legal traditions: civil law
by Richard Kreindler, Shearman and Sterling, Frankfurt

Arbitration of investment disputes: a Malaysian perspective
by Dato Cecil Abraham

Specific issues in Islamic dispute resolution
by Mohamed Ismail Mohamed Shariff, Skrine, Kuala Lumpur

Specific issues in Islamic dispute resolution
by Mark Hoyle, Tanfield Chambers

Is adjudication killing arbitration?
by Rashda Rana, Holding Redlich, Sydney

Maritime disputes: now and in the future
by Bruce Harris, Quadrant Chambers

Adjudication and arbitration: the when and why in construction disputes
by John Tackaberry QC, 39 Essex Street

The changing political environment for investment agreements
by Andrew Berkeley

Can good offices assist in relation to resource nationalism?
by Don McKinnon

The potential role of good offices
by Thomas Mensah

Do established international dispute resolution bodies have a role?
by David Branson

Resolving disputes between resource-rich and consuming countries
by Johan Gernandt, Vinge, Stockholm.

CONTRACT AND PROCUREMENT LAW

Public Procurement Law Review 2009 No.1

contains the following articles:

Political institutions and the Government Procurement Agreement of the WTO
by Dong-Hun Kim, Oakland University

Remedies in public procurement law in Ireland
by Catherine Donnelly, Trinity College Dublin and Blackstone Chambers
and notes on the following:

Evropaiki Dynamiki – Proigmena Systimata Tilepikinonion Pliforikis kai Tilematikis v Commission, on obligation to state reasons for the rejection of a tender (ECJ)

Commission v Italy on the Teckal exemption for in-house contracts (ECJ)

European Commission decision refusing exemption to Poland's electricity industry under Article 30 of Utilities Directive

The Commission's Interpretative Communication on Institutionalised Public Private Partnerships

Sheridan Millennium v Dept for Social Development on general principles of judicial review and public procurement (NI QB)

Lightways (Contractors) v North Ayrshire Council on award of interim injunctions (Court of Session Outer House)

OGC Consultation on implementation of the Remedies Directive

J&A Developments v Edina, McLaughlin & Harvey v Dept of Finance (No.1 and No.2) and Henry Bros v Dept of Education (No.2)

Public Procurement Law Review 2009 No.2

contains the following articles:

The European Defence Agency Electronic Bulletin Board: A survey after two years
by Baudouin Heuniackx, University of Nottingham

Competition policy and international trade liberalisation: essential complements to ensure good performance in public procurement markets
by Robert Anderson, WTO, and William Kovacic, George Washington University and notes on the following:

Commission v Italy on incorrect categorisation of a tramway contract as a works concession (ECJ)

Commission v Italy on supply of helicopters for police and fire services (ECJ)

Evropaiki Dynamiki v Commission on obligations to state reasons for rejection of tender (ECJ)

McLaughlin & Harvey v Dept of Finance (No.3)

The Public Contracts and Utilities Contracts (Postal Services Amendments) Regulations 2008

Construction Law Vol. 20 Issue 3 April 2009

contains the following articles:

Dawn of digitisation was worth the wait
by Michael Phipps, Thurston Consultants
(on newly available digitised JCT documents: Construction Management Appointment 2008
Construction Management Guide 2008
Construction Management Trade Contract 2008)

Clients beware of standard forms
by Ian Yule, Wragge & Co
(on RIBA, ACE and RICS consultancy appointment contracts)

More changes expected from JCT
by Shona Frame, MacRoberts

Partnering for the long term
by David Mosey, Trowers & Hamlins

The waiting game – suspension of contracts
by Bernard Ang and Hannah Fletcher, Pinsent Masons

Insurance cover on stalled contracts
by John Wright of JC Risk Associates

Remedies In Tender Challenge

Henry Bros v Dept. for Education for Northern Ireland (No. 3) [2009] BLR 174 NI QB
This is the third reported judgment in the Northern Ireland case in which the exclusion of the claimant contractors from a framework agreement was successfully challenged as in breach of the Public Contracts Regulations 2006. Following McLaughlin & Harvey v Department of Finance and Personnel, the court gave judgment on remedies, holding that the framework agreement would have to be set aside as a result of the breaches; it was not possible, however, to have the claimant's name added to the list of successful tenderers. The remedy would be limited to damages, where contracts had actually been entered into with other contractors.

Note: It is understood that appeal proceedings are under way.

Construction Law Journal 2009 Vol. 25 No. 3

contains the following articles:

Construction law research: time to get going
by Justin Sweet, University of California

Drafting dispute management clauses: principles of risk management for commercial contracts
by Peter Phillips, CPR Institute, New York

The views and experiences of specialist contractors on partnering in the United Kingdom
by Jim Mason, University of the West of England

International Construction Law Review Vol. 26 Part 2 April 2009

contains the following articles:

Turnkey contracting under the ICC Model Contract for Major Projects: a Middle Eastern perspective
by Marwan Sakr, Hennaoui & Sakr, Beirut

PPPs in Brazil
by Cecilia Vidigal Monteiro de Barros, Xavier Bernardes & Braganca, Sao Paulo

Laying siege to 'four walls' entire agreements: the parol evidence rule in construction contracts
by Trevor Thomas, Clayton Utz, Melbourne

Construction Law Vol 20 Issue 4 May 2009

contains the following articles:

Bonds and parent company guarantees
by Scott Duncan and Nicola Milne, Pinsent Masons

New agreement full of potential
by Michael Phipps, Thurston Consultants
(on JCT Pre-Construction Services Agreement 2008)

Protecting the project against insolvency
by Lisa Calderwood, Maxwell Winward

Getting the best out of underwriters
by John Wright, JD Risk Associates
(on design and build PI cover)

See Amaryllis Ltd v HM Treasury under Keating Chambers Reported Cases on time and procedure for challenge under Public Contracts Regulations 2006.

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

No Re-Opening Of Invoices

Furmans Electrical Contractors & Elecref Ltd [2009] BLM Vol. 26 No. 4 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.

Good Faith And Reasonableness In Australia

John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2009] Con LJ Vol. 25 No. 3 229 NSW CA
Under a highways contract, the client had discretion to return up to 50% of the security held to the contractor if it was considered 'just and reasonable'. Following adjudication decisions in favour of the contractor, the client refused to return any security. The contractor alleged that the client was in breach of a duty to act in good faith and reasonably. The court agreed that there was such a duty but held that it had not been breached by the client in deciding to hold onto its security. The NSW Court of Appeal upheld the trial judge's decision.

See AE Yates Trenchless Solutions v Black & Veatch under Keating Chambers Reported Cases on an IChemE Brown Book 'battle of forms'

Execution Following Mercury
The Law Society's guidance on execution of documents, following the High Court's decision in R (on application of Mercury Tex Group Ltd) v HMRC was published on 11 May 2009. The case had cast doubt on the (common) practice of 'virtual signings and closings', developed to avoid logistical problems in execution and signature of documents. The practice involves the preparation in advance of signature pages which are then transferred to the engrossed final form of the document.

A joint working party of the Law Society Company Law Committee and the City of London Law Society's Company Law and Financial Law Committees prepared the guidance, comprising a non-exhaustive range of options. Advice was obtained from David Thomas QC.

Procurement Lawyers Launch

The Procurement Lawyers Association was launched on 9 March 2009 with the stated aim of brining together "all procurement lawyers, including those in practice and academics, in the UK and elsewhere." The overall aim is to "act as a platform to represent, promote and strengthen procurement law expertise" with the specific objectives the provision of

  1. an external collective voice e.g. in order to respond to consultation exercises
  2. a forum for in depth discussion and debate about key procurement law issues
  3. training and know how.

More details can be obtained from Ruth Davies at Addleshaw Goddard ruth.davies@addleshaw .com.

GENERAL AND PROFESSIONAL NEGLIGENCE

Res ipsa loquitur
George v Eagle Air Services Ltd [2009] Times Law Reports 15 May PC
The Privy Council allowed an appeal by the claimant from a decision of the Court of Appeal of the Eastern Caribbean, a relative of a victim killed in an air crash. The case is of use, although not a construction case, because it confirms in another type of case, the continued applicability of the doctrine of res ipsa loquitur, by which the burden of proof in a negligence case can switch from claimant to defendant, where the facts are such as to require the defendant to show how harm to the victim had occurred without negligence by the defendant.

PRACTICE AND PROCEDURE

See Carillion JM v Bath and North East Somerset Council under Keating Chambers Reported Cases on applications to hear preliminary issues and to call a second architect expert for third party proceedings.

See Fitzpatrick Contractors v Tyco (No. 3) under Keating Chambers Reported Cases on criteria for award of indemnity costs.

Construction Law Vol 20 Issue 4 May 2009

contains the following articles:

Early offers can avoid own goals
by Tony Dymond and Estelle Katsimani, Herbert Smith
(on the lessons of the Multiplex litigation costs)

Severability of adjudicator's decisions
by Lynne McCafferty, 4 Pump Court

Third party debt orders
by Paul Newman, 3 Paper Buildings

Negotiation is a privilege
by John Sheils, Shadbolt

Commercial Litigation Journal No 24 March/April 2009

contains the following articles:

Trade marks: border disputes
by Sara Ludlam, Ludlams

Injunctive relief: good for the money?
by Lorna Brazell, Bird & Bird

Civil procedure: service with a smile
by David di Mambro, Radcliffe Chambers

Competition law: thank you for the music
by Margaret Gray, Brick Court Chambers
(on ECJ ruling in Kanal 5 case)

Auditors: accounting for error
by Liam O'Connell, Kirsty Hick and Laura Jamieson, CMS Cameron McKenna

Legal Services Act: a catalyst for dispute
by Peter Moore, Denton Wilde Sapte

Not letting the side down
by Ralph Houston
(on client care)

KEATING CHAMBERS REPORTED CASES

AE Yates Trenchless Solutions Ltd v Black Veatch Ltd [2009] CILL 2669 TCLR 4 TCC
In a 'battle of the forms' case, it was held that the terms and conditions of the IChemE Brown Book form of sub-contract (2nd ed 2004) took precedence over the contents of the terms and conditions of the sub-contractor's quotation, where the two conflicted. The defendant contractor obtained declarations to this effect against the claimant sub-contractor.
Marcus Taverner QC
Rosemary Jackson QC

Bovis Lend Lease Ltd v Trustees of the London Clinc [2009] CILL 2672 TCC
Already reported in BLM, 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

Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2009] CILL 2679 TCC
Although the parties had not agreed that the adjudicator had power to rule on his own jurisdiction, he did have jurisdiction and therefore could decide the claim referred. His decision based on the quotation, which constituted the writing for s.107 purposes, was therefore enforceable.
Jessica Stephens
Jonathan Selby

The Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] CILL 2676 and [2009] BLR 135 TCC
A referral to adjudication on 19 December comprised a 92 page referral notice and 37 lever-arch files. The defendant client sought declarations that the timetable for such a volume carried a serious risk of a breach of natural justice as giving inadequate time for response by the defendant and decision by the adjudicator. The declarations were refused, although the judge kept open the possibility of a challenge to enforcement proceedings if the anticipated breach of natural justice actually materialised.
Paul Buckingham

Fitzpatrick Contractors Ltd v Tyco Fire & Integrated Solutions (No. 3) [2009] BLR 144 TCC
This is the costs hearing of the case on the effect of a quantum cap reported in Con LR and noted in February 2009 issue. The claimant, Fitzpatrick, had made a Part 36 offer to settle proceedings with Tyco, which Tyco eventually accepted.

Fitzpatrick failed in its claim for indemnity costs, although it got interest on its costs and an interim payment. The case is useful for setting out the criteria for granting indemnity costs.
Marc Rowlands
David Thomas QC
Jonathan Lee

Carillion JM Ltd v Bath and North East Somerset Council [2009] TCLR 5 TCC
In a case arising from the Bath Spa project, the claimant contractor claimed the net sum due on its final account, while the employer counterclaimed for delay and inadequate remedial works. The employer issued third party proceedings against its architect. The contractor applied for a trial of preliminary issues as to repudiation and the employer applied for leave to call a second architect expert witness on the ground that its first expert had already taken a view on the problems encountered in relation to the contractor and could not take a view on the architect's role. Both applications were refused. A court should normally order a trial of preliminary issues by consent and not impose them on an unwilling defendant. The employer had chosen to bring the case against the architect and should prove it by reference to its expert.
Fionnuala McCredie
Richard Coplin

Dalkia Energy & Technical Services Ltd v Bell Group Ltd [2009] BLM Vol. 26 No. 4 TCC
An adjudicator's decision on whether the defendant sub-contractor's terms and conditions were validly incorporated into the sub-contract was part of the dispute referred to him and thus not normally a matter for the court to interfere with at enforcement. However, in Part 8 proceedings, the court would have jurisdiction to decide this matter and held that the standard terms were so incorporated.
Calum Lamont

OSC Building Services v Interior Dimensions Contracts Ltd [2009] CILL 2688 TCC
In proceedings by sub-contractor OSC to enforce an adjudication decision against main contractor IDC, IDC argued that the dispute related to the final account rather than an interim payment and that the referral expanded the dispute beyond that set out in the notice of adjudication. The court rejected these arguments and held that to raise jurisdictional arguments there must have been at least a protest in the adjudication.
Lucy Garrett

YCMS Ltd v Grabiner [2009] CILL 2692 TCC
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

F Ltd v M Ltd [2009] CILL 2681 TCC
F challenged an ICC arbitration award arising from a dispute over a gas desulphurisation plant under s.68 Arbitration Act, alleging serious irregularity. The court rejected the argument that a dissenting opinion had been wrongly ignored; dissenting opinions are generally irrelevant to a s.68 challenge, unless they point out, as here, an error by the majority. The majority had not been wrong in failing to give F Ltd a chance to respond to their findings on alternative arguments, although it may have been desirable to notify the parties before finalising the award. However, there had been serious irregularity in the majority's failure to give credit to F for £973,000, since there was no pleaded basis on which they could hold F liable to pay that sum to M.
Paul Buckingham

Amaryllis Ltd v HM Treasury [2009] EWHC 962 TCC
The defendant client failed in its attempt to strike out a challenge by the claimant contractor for alleged breach of the Public Contracts Regulations 2006. The claimant had been unsuccessful at the first stage tender process on the most valuable element of furniture supply contracts under a framework agreement and claimed it had not been informed of weightings of questions nor given adequate reasons for the outcome. The defendant client failed in its arguments that the claimant's challenge did not meet the requirements of the Regulations on the adequacy of the notice and on time limits. The judgment contains useful guidance on the meaning of 'promptly'.
Sarah Hannaford QC

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.

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.

http://www.keatingchambers.com

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however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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