UK: Case Law Review - Construction, Property & Real Estate (May/June 2009)

ADJUDICATION

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

Company Voluntary Arrangement

Mead General Building Ltd v Dartmoor Properties [2009] BLR 225 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.

Construction Law Vol. 20 Issue 5 June 2009

contains the following articles:

Waiting in ambush
by Lynne McCafferty, 4 Pump Court

Countdown to natural justice
by John Sheils, Shadbolt

Adjudicator's Fees

Linnett v Halliwells LLP [2009] CILL 2704 TCC
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.

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

Condition Not To Adjudicate

London Borough of Camden v Makers UK Ltd [2009] CILL 2720 TCC
Makers had referred to adjudication a dispute which was before the courts. Camden argued that the setting aside of a judgment in default of its favour should be subject to a condition that Makers would not go to adjudication. The court agreed that it had the power to impose conditions but held that a prohibition against adjudication was not appropriate.

Extension Of Time Limit And Cross-Claim

Letchworth Roofing Co v Stirling Building Co [2009] CILL 2717 TCC
A 12 December referral by Letchworth was accompanied by an indication that time would be extended to take account of the Christmas vacation. Main contractor Stirling did not pay the sum awarded and argued that the time limit for the decision had not been extended. The court rejected this. Stirling also argued that the adjudicator should have taken its cross-claim into account. This too was rejected on the ground that a responding party cannot take account of a cross -claim which has not been the subject of a withholding notice.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration Law Monthly Vol.9 No.6 June/July 2009

contains the following articles:

Stay of arbitration proceedings
on Data Reclamation v Premier Waste Management
(effect of application for interim judicial relief)

Error of law
on Majorboom v National House Building Council (Samuel Townend)
(Permission to appeal on fact)

Jurisdiction
on Michael Wilson & Partners v Emmott
(Definition of an award)

Security for an arbitration claim
on Kallang Shipping v Axa Insurance Senegal (arrest of a vessel)

Stay of proceedings
on City of London v Sancheti
(Bilateral Investment Treaties)

Supporting the arbitration
on Sheffield United FC v West Ham United FC
(Temporary anti-suit injunctions)

Challenge To Arbitration Award

Introduction to Arbitration Law – Part 2, by Paul Newman, 3 Paper Buildings, Construction Newsletter March/April 2009
This is the second part of a two part introductory article on the features of arbitration law. The first dealt with the characteristics of arbitration, what it is and is not. The second part is concerned with opportunities for challenge to arbitrators' awards.

Arbitration Law Monthly Vol.9 No.5 May 2009

contains the followings articles:

Appeals to the court
on ASM Shipping Ltd of India v TTMI Ltd of England
(permission for a challenge to the award out of time)

Foreign judgments in breach of arbitration clauses
on DHL GBS (UK) v Fallimento Finmatica
(enforcement of judgment in England in breach of arbitration clause)

Enforcement of New York Convention awards
on Dallah Real Estate and Tourism v Ministry of Religious Affairs, Pakistan
(refusal of enforcement on jurisdictional grounds)

Consumer contracts
on Mylcrist Builders v Buck
(binding effect of an arbitration clause)

Enforcement of awards
on Nigerian National Petroleum Corporation v IPCO Nigeria in the Court of Appeal
(partial enforcement)

See British Telecommunications v SAE Group under Keating Chambers Reported Cases on effect of absence of agreement for arbitration/expert determination on jurisdiction and validity of proceedings.

Alleged Duress In Mediation

Farm Assist Ltd v Secretary of State for Environment, Food and Rural Affairs [2009] Con LJ Vol. 25 No.4 308 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 confidentiality was expressly provided for 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.

Dispute Resolution In Latvia

Stripping arbitration agreements of their economic value in the overloaded courts of Latvia
by Daimars Skutans, Spilbridge. Construction Law Journal (2009) Vol.25 No.4 p.269
The article is a critique of Latvian arbitration law, focussing on the refusal to enforce assigned rights under arbitration agreements. The latest draft of Latvia's Arbitration Act confirms this position and the author accuses the Latvian courts of disregarding the Rome Convention. Third parties are said to be forced into Latvia's overloaded domestic courts by this position.

International Arbitration Law Review Vol.12 Issue 13 2009

contains the following articles:

Metropolitan Property Realizations v Atmore Investments – serious irregularity or simply wrong?
by Ben Holland and Adam Berry, CMS Cameron McKenna

Arbitration clauses after West Tankers: the unanswerable conundrum? Practical solutions for enforcing arbitration clauses
by Neville Byford and Afzalah Sarwar, Morgan Lewis & Bockius, London

Section 44, freezing injunctions and foreign arbitrations: limitations on jurisdiction
by Philippa Charles, Mayer Brown

CONTRACT AND PROCUREMENT LAW

Construction Law Vol.20 Issue 5 June 2009

Adornments unnecessary
by Michael Phipps, Thurston Consultants
(on JCT Pre-Construction Services Agreement)

The formalities of signing deeds – a warning
by Jane Hughes and Amy Bradbury, Collyer Bristow

Project bank accounts
by Mike Barlow, Macroberts

see Amaryllis v HM Treasury under Keating Chambers Reported Cases on adequacy of notice and time limits for challenge of contract award under Public Contracts Regulations 2006.

Letter Of Intent And Contract Formation

RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co [2009] BLR 181 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 letter 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.

Contractor's Challenge Fails

JB Leadbitter & Co Ltd v Devon County Council [2009] CILL 2713 Ch Div.
The claimant contractor failed in its contention that its tender, under a four year framework agreement, had been wrongly excluded from consideration by the Council. The claimant had submitted its tender within the extended deadline but omitted the requisite case studies. It tried to send these later but failed to get them in until after the deadline. The claimant alleged that the Council had acted in breach of its duty to be proportionate. The court held that it had done so in rejecting a tender which was significantly non-compliant.

International Construction Law Review July 2009 Vol.26 Part 3

contains the following articles:

Shifting sands in the economy and international procurement market
by Nick Henchie, Mayer Brown, London

Principles of European Law: service contracts
by Prof Monika Chao-Duivis, Delft University of Technology

Long-term equipment and material procurement and supply contracts for mining and infrastructure projects in Australia – an overview of commercial and legal issues
by Andrew Chew, Mallesons Stephen Jaques, Sydney

PSSCOC and causes of construction delay in Singapore and four selected ASEAN countries
by Sui Pheng Low, Jun Ying Lui and Imy Tan, National University of Singapore

Choice of law: a happy ending?
by Philip Britton, King's College, London

Arbitration and mediation in Hong Kong: a new era
by David Bateson, Mallesons Stephen Jaques, Hong Kong

Transparency, award criteria and framework agreements in public procurement: a review of recent case law
by Adrian Brown and Miranda Ramphul, Herbert Smith

The Local Democracy Economic Development and Construction Bill 2008
by Brian Mason and Martin Bridgewater, Herbert Smith

Construction Newsletter May/June 2009

contains the following articles:

Listed buildings – myths and risks
by Isabel Diver, Foot Anstey

Are collaborative working techniques recession proof?
by Katie Graham, Stephenson Harwood

Public Procurement Law Review 2009 Part 4

contains the following articles:

Burden of proof in interim proceedings
by Zsofia Varga, Orrick, Frankfurt

Greece breaches Community Law by excluding tenders to supply medical devices bearing the CE markings, without applying the safeguard procedure laid down in Directive 93/42
by Adrian Brown, Herbert Smith LLP

The European Defence Agency Capability Development Plan and European Armaments Cooperation Strategy
by Baudouin Heuninckx, University of Nottingham

Swedish exemption granted for some services within the Postal Sector, Czech Exemption refused for production of electricity
by Rhodri Williams, Henderson Chambers

Judicial review, public procurement and the establishment of an Academy: a note on Chandler v Camden Borough Council; Chandler v Secretary of State for Children, Schools and Families
by S.H. Bailey,. University of Nottingham

Challenge to termination of a procurement competition
by Patrick McGovern, Arthur Cox

Standstill notice in respect of Part B services: the decision in Federal Security Services Ltd v Chief Constable of the Police Service of Northern Ireland and Resource Group Limited
By Patrick McGovern, Arthur Cox

Chandler v Camden Borough Council; Chandler v Secretary of State for Children, Schools and Families
by Paul Henty, Shadbolt LLP

The Procurement Law Academic Network
by Sue Arrowsmith , University of Nottingham

Remedies for breaches of procurement rules and the UNCITRAL Model Law on Procurement
by Caroline Nicholas, UNCITRAL

Development promotion as a secondary policy in pubic procurement
by Rolf H. Weber, University of Zurich

Ineffectiveness – the new deterrent: will the new Remedies Directive ensure greater compliance with the substantive procurement rules in the classical sectors?
by Michael-James Clifton

The new Defence Procurement Directive
by Tim Briggs, Herbert Smith LLP

Public Procurement Law Review 2009 Part 3

contains the following articles:

The distinction between selection and award criteria in EC public procurement law – rule without exception?
by Steen Treumer, Copenhagen Business School

Selection and award criteria from a German public procurement law perspective
by Anne Rubach-Larsen, White & Case, Hamburg

Selection and award criteria in Italian public procurement law
by Mario E Comba, University of Torino

Selection and award criteria in Belgian procurement law
by William Timmermans and Tim Bruyninckx, Brussels Bar

Superiority in experience and skills may distinguish a better tender bid! Critical reflections from Norway on the Lianakis ruling
by Kai Kruger, Law Faculty of Bergen, Norway

The distinction between selection and award criteria in EC public procurement law: the Danish approach
by Laurence Folliott-Lalliott, University Paris-Quest Nantierre – La Defense

Application of the "Teckal" exemption to a services concession contract: Coditel Brabant SA v Commune d'Uccle, Region de Bruxelles-Capitale (C-324/07):
by Totis Kotsonis, Norton Rose

Exclusion of bidders on grounds of holding media interests: Michaniki AE v Ethniko Simvoulio Radiotileorasis and Ipourgos Epikratias (C-213/07)
by David McGowan, Maclay Murray & Spens LLP

Mininum selection criteria and their application during the evaluation process: Sogelma Srl v European Agency for Reconstruction (EAR) (T-411/06)
by Elisabetta Piselli

Recourse to the accelerated procurement procedure
by Rhodri Williams, Henderson Chambers

Issues for public procurements resulting from instability in global financial markets
by Sally Roe and James Dickinson, Freshfields Bruckhaus Derringer LLP

Greek jurisprudence: Lianakis v Dimos Alexandroupolis, No. 1794/2008 of the Council of State (Simvoulion tis Epikrateias)
Aris Georgopoulos, University of Nottingham

Fighting corruption in public procurement through the OECD: a review of recent initiatives
by Sope Williams, University of Nottingham and Ama Eyo, Derbyshire Constabulary

Remedies for breach of procurement law in the context of framework agreements: Henry Bros (Magherafelt) Ltd, FB McKee & Co Ltd v Department for Education for Northern Ireland (No.3 – Remedies)
by Patrick McGovern, Arthur Cox

The legality of the time limits for challenge in the UK public procurement regulations: a reference to the ECJ
by Paul Henty, Shadbolt LLP

Note on Chinese Taipei's GPA accession
Ping Wang, University of Nottingham

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

Frustration

CTI Group Inc v Transclear SA [2009] BLM Vol.26 No.6 CA
The Court of Appeal affirmed that the doctrine of frustration operates within very narrow limits and that the courts remain reluctant to allow it to be used to enable a party to escape from an agreement which works out badly. The BLM Editors emphasise the necessity of a properly drafted force majeure clause for a party which wishes to regulate its liability, given this confirmation that frustration will rarely be available.

Termination And Repudiation

Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] BLR 196 and [2009] CILL 2708 CA
The (ship-building) case concerned interpretation of the termination clauses and whether it prevented the client, who had terminated the contract, from recovering its deposit and damages for losses sustained. The Court of Appeal dismissed the appeal by Stocznia Gdynia (the Yard) against the judge's finding that Gearbulk was entitled to reclaim its deposit and claim damages. The Yard had argued that the termination clause was part of a contractual code which excluded all common law rights, but it was held that it would require very clear words to convert a termination clause into an exclusive remedies clause. There was also considerable discussion of what constitutes repudiation and when a breach is sufficiently serious to go to the root of a contract.

Construction Law Vol.20 Issue 5 June 2009

contains the following articles:

Termination due to employer insolvency
by Zac Spyrou, Pinsent Masons

Sensible defects clause construction
by Ann Levin and Michael Mendelblat, Herbert Smith

Notification nightmares
by John D Wright, JD Risk Associates
(on professional indemnity insurance)

No Re-Opening Of Invoices

Furmans Electrical Contractors v Elecref Ltd [2009] TCLR 6 CA
In a dispute concerning overpayment 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.

GENERAL AND PROFESSIONAL NEGLIGENCE

Solicitors' Negligence

Levicom International Holdings v Linklaters [2009] EWHC 812 (Commercial Court)
The defendant solicitors had been negligent in failing properly to convey their advice to their clients, leading them to form a more optimistic view of the solicitors' assessment of the position than was the case. This was so even though the solicitors' assessment of the case was not negligent. However, only nominal damages were awarded, as the claimants could not prove they would have acted differently with different advice.

Defective Premises Act

Bole v Huntsbuild Ltd [2009] CILL 2697 (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 NHBC standards and the movement and cracking were sufficient to render the house unfit for human habitation. Both contractor and consultant 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 checklist 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 not followed (both cases were heard by the same judge).

See Brookfield Construction (UK) v Foster and Partners under Keating Chambers Reported Cases on the duty of a professional consultant to provide assistance.

Basement Design

Watertight basements by John Wasilewski, Capita Symonds, (2009) Construction Law Journal Vol.25 No.4 p.274
This is a detailed consideration of the responsibilities of architects, structural engineers and to some extent builders in ensuring that below-ground structures are watertight. The article distinguishes between the concepts of 'watertight' and 'damp-proof' and explains water pressure and resistance. Reference is made to CIRIA guidance, Eurocode and British Standards, notably the British Standard Code of Practice for protection of structures against water from the ground. There is also material on tanking and materials, including concrete. Case law is mentioned, but only in passing.

Negligence In Partnership

Tann v Herrington [2009] PNLR 22
The defendant surveyor, the senior of two partners, was held to be unable to recover a share of liability for a negligence claim, which was settled, from his former partner, the claimant architect. The defendant had not informed insurers until two years after the claim, thus losing indemnity, and the claimant only heard of it when he was notified of the settlement by the defendant. The claimant was entitled to a share of the enhanced value of property assets following dissolution of the partnership but the defendant's negligence in handling the claim deprived him of any right to seek a contribution to the settlement from his former partner.

PRACTICE AND PROCEDURE

TCC Guide Only Gives Guidance

Vitpol Building Service v Michael Samen [2009] Con LJ Vol.25 No.4 319 TCC
The TCC was asked to decide as a point of principle whether it 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 on 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 JCTIFC 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 which provided only guidance and it would embrace the ability to decide the point on existence of the contract.

SeeSeele Austria v Tokio Marine Insurance under Keating Chambers Reported Cases on refusal to allow amendments to Particulars of Claim for delay and issue estoppel.

Litigation Letter Vol.28 No.6 June 2009

contains the following articles:

Review of civil litigation costs: preliminary report
(on the Jackson report)

Unfair international contracts
on Trident Turboprop (Dublin) v First Flight Couriers
(exclusion of international supply contracts from the Unfair Contract Terms Act)

Costs As Damages

Costs as damages by Louise Merrett, Trinity College, Cambridge Law Quarterly Review Vol.125 July 2009 p.468
Starting from the proposition that it is "well settled that the recovery by A from B must be by way of an order for costs", the article examines the basic rule of English law that, unless the claimant can rely on a separate cause of action, litigation costs can only be recovered as costs and not as damages. It examines the policy considerations supporting the rule and exceptions: i) where costs were incurred in proceedings involving a third party and ii) where the claimant is relying on a separate and independent cause of action. While in exceptional cases it is possible to claim costs incurred in other proceedings as damages, assessment of such damages is problematic.

The Commercial Litigation Journal May/June 2009 No.25

contains the following article:

Jurisdiction: courting favour
by Ian Smith, 11 Stone Buildings
(on application of English law in cross-border commercial disputes)

Employment litigation: a new era
by Anna Humphrey and Michael Bradshaw, Charles Russell

Contempt of court: more than a slap on the wrist
by Matthew Lawson and Rani Mina, Mayer Brown

Company law: shareholder redress
by Patrick Beale, Reed Smith

Jurisdiction: a place to stand
by David Howell and Sarah Thomas, Fulbright & Jaworkski
(on West Tankers case)

Disclosure: arranging the haystack
by Dan Smith and Chris Storr, Barlow Lyde & Gilbert

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

Settlement With Third Party

Siemens Building Technologies FE Ltd v Supershield Ltd [2009] CILL 2723 TCC
Following the flooding of Slaughter & May's office, Siemens as sub-sub-contractor had settled with the parties up the contractual chain, following a multi-party mediation. Siemens maintained its Part 20 claim against its sub-sub-sub-contractor Supershield, claiming the sums paid in settlement of the claims above it. The court held Siemens entitled to recover in respect of a reasonable settlement it had made. The test was whether the settlement came within a range which reasonable people might have made in the same position, taking into account the strength of the claim, legal advice, uncertainty and cost of litigation and benefits of settling rather than litigating.

KEATING CHAMBERS REPORTED CASES

British Telecommunications plc v SAE Group Inc [2009] BLR 231 TCC
BT successfully sought declarations that its contract with SAE contained no arbitration agreement or any agreement for expert or third party determination, although there was an agreement for expert determination in a draft version of an Appendix. The arbitrator/expert appointed had no jurisdiction to determine any disputes between the parties and his appointment, like the proceedings, was null and void. These determinations were made under the court's inherent jurisdiction, rather than the Arbitration Act 1996.
Paul Buckingham

Seele Austria GmBh Co v Tokio Marine Europe Insurance Ltd [2009] BLR 261 TCC
This is the continuation of proceedings previously in the Commercial Court (and Court of Appeal) on an insurance claim for damage caused by repair of defective glazing. In the TCC hearing, the claimant sought to amend its Particulars of Claim and the defendant sought to strike out the claim. The court refused to allow amendments to allegations relating to design, as these were subject to issue estoppel from the earlier hearings and the rule in Henderson v Henderson, i.e. could not be raised so late. Quantum amendments would be allowed.
Adrian Williamson QC

Fitzpatrick Contractors Ltd v Tyco Fire & Integrated Solutions (No.3) [2009] CILL 2700 TCC
Already reported in BLR, 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

YCMS Ltd v Grabiner [2009] BLR 211 and [2009] BLM Vol.26 No.6 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

Amaryllis Ltd v HM Treasury [2009] BLM Vol.26 No.6 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 that 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

Brookfield Construction (UK) Ltd v Foster & Partners Ltd [2009] Construction Newsletter March/April 2009 4 TCC
The article 'The duty of the professional consultant to assist' by Chris Hoar, Foot Anstey, is an extended case note. It is the latest case in the Wembley Stadium litigation and concerned a clause in a consultancy agreement for the provision of architectural services between an architectural consortium and the design and build contractors. The Court considered the obligation of the consortium to provide the contractors with assistance, whether it was a continuing obligation and the nature and scope of the assistance. Brookfield was formerly Multiplex. See a full report at [2009] BLR 246.
Alice Sims

The Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] BLM Vol.26 No.6 135 TCC
Already reported in BLR, 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

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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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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