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

Last Updated: 3 September 2009
Article by Keating Chambers


Construction Law Journal 2009 Vol. 25 No. 5

contains the following articles:

Weather warning: adjudication hot-house meets depression Precipitation expected
by Alexander Hickey, 4 Pump Court
(on recent adjudication enforcement decisions featuring Cantillon v Urvasco, Quartzelec v Honeywell (Fionnuala McCredie), CJP Builders v William Verry, Air Design v Deerglen (Gaynor Chambers), Euro Construction Scaffolding v SLLB (Jessica Stephens), Vitpol Building Services v Samen, Walter Lilly v DMW, Dorchester Hotel v Vivid Interiors (Paul Buckingham), Kier Regional v City and General (Adam Constable)

Severability of adjudicators' decisions revisited
by Peter Sheridan and Dominic Helps, Shadbolt
attacking the view of Sean Brannigan QC on Cantillon v Urvasco citing Bovis Lend Lease v London Clinic (Finola O'Farrell QC) and AMEC v Whitefriars (David Thomas QC, Stephen Furst QC, Jane Lemon).

See North Midland Construction v AE&E Lentjes under Keating Chambers Reported Cases on the "broad" and narrow" approaches to s.105 HGCR Act on exclusion of activities relating to power generation.

See Primus Build v Pompey Centre under Keating Chambers Reported Cases on service of Notice and excess of jurisdiction by adjudicator.

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

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.

Oral Contract And Interest

Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2009] 123 Con LR 1 TCC
Already reported in TCLR, 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 v Devonport Royal Dockyard (Stephen Furst QC and Louise Randall), the adjudicator had no power to award interest.

Construction Law Vol. 20 Issue 6 July 2009

contains the following articles:

Finances no ground for stay of execution
by Emmanuel Ninos and William Cooper, Shadbolt

Preparing for a nuclear fallout?
by Emelita Robbins, Herbert Smith
(on the HGCR Act nuclear exemption)

The error of omission
by John Sheils, Shadbolt

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

Adjudicator's Fees And Acceptance

Linnett v Halliwells LLP [2009] BLR 312 and 123 Con LR 104 TCC
Halliwells, the client 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. Its silence and letter had not been accepted, but its request to the adjudicator to make a non-binding decision gave rise to a contract.

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

No Written Contract

Adonis Construction v O'Keefe Soil Remediation [2009] EWHC 2047 TCC LAWTEL

The fact that the sub-contractor had never signed the order for works and that the draft order did not amount to an offer meant that there was no written contract for the purposes of the HGCR Act 1996 and thus no jurisdiction for the adjudicator. The letter of intent from the main contractor, Adonis, had been followed by a draft order to soil remediation sub-contractor O'Keefe, but the draft order stated that the official order would be issued subsequently. It could not therefore be part of a written contract, since it lacked the necessary intention to be an offer.

Summary Judgment Resisted

Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2108 TCC LAWTEL
Multifit sought summary judgment to enforce an adjudicator's award in its favour. Estor successfully submitted that it was arguable that there was no contract between Estor and Multifit, on the basis that Estor was owned and run by an individual and that Multifit had dealt with that person. If this was correct, the adjudicator would have no jurisdiction, so summary judgment should not be granted.

Novation Challenge Fails

Camillin Denny Architects Ltd v Adelaide Jones & Co. Ltd [2009] EWHC 2110 TCC LAWTEL
The applicant architects sought summary judgment enforcing an adjudicator's decision in their favour against the respondent project managers. The respondents argued that a novation had taken place so that there was no contract between the parties. However, the court held that the project managers could not have been replaced by a party which was never incorporated and never in a position to place or enter into contracts. Therefore the novation argument could not succeed and summary judgment should be granted.

See Workspace Management v YJL London under Keating Chambers Reported Cases on enforceability of adjudicator's finding of overpayment as a set-off against an arbitration award.


Arbitration Vol. 75 No. 3 August 2009

contains the following articles:

Islamic finance: potential implications for dispute resolution
by Aisha Nader, Queen Mary, London

The influence of Sharia norms of dispute settlement and international law: the International Court of Justice, room for accommodation?
by Ayla Karmali, Salam Advocates, Dubai

The anti-suit injunction: historical overview
by David Altaras, 36 Bedford Row

After West Tankers – rise of the 'foreign torpedo'?
by Stuart Dutson, Eversheds, London and Mark Howarth, Eversheds, Leeds

Spare the rod and spoil the party: how procedurally robust should a tribunal be?
by Mark Beeley and Sarah Stockley, Vinson & Elkins, London

Emergent international attitudes towards bribery, corruption and money laundering
by Kenneth Beale, Wilmer Cutler, London and Paolo Esposito, Studio Legale Esposito, Naples

Rent review arbitrators: legal challenges to awards and how to avoid them
by Stephen Bickford Smith, Landmark Chambers

Enforcement of foreign awards in China: judicial attitudes
by Fei Lan Fang, Three Gorges University, Yichang

Mediation developments in civil and commercial matters within the European Union
by Ann Brady, Rougemont Chambers, Exeter

The US model for international class action arbitration
by Grant Hannessian and Christopher Chinn, Baker & McKenzie, New York

Incorporation by reference of the arbitration clause: recent Lebanese practice in a comparative context
by Marwan Sakr, Hennaoui & Sakr

Global Arbitration Review 2009 Vol. 4 Issue 3

contains the following article:

The essentials of stabilisation clauses
by David Moss, Lovells


Letter Of Intent And Contract Formation

RTS Flexible Systems Ltd v Molkerei Alois Muller GmbH & Co [2009] 123 Con LR 130 CA

This is the report of the appeal from the TCC's decision and was already reported in BLR. 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.

Construction Law Vol. 20 Issue 6 July 2009

contains the following articles:

What is reasonable?
by Michael Phipps, Thurston Consultants (on JCT Pre-Construction Services Agreement 2008)

Demystifying the NEC3 Contract
by Ron Plascow, Mills & Reeve

Slaying some liquidated damages myths
by Hamish Lal, Dundas & Wilson

Shared risk and reward the key to partnering
by Martin Hirst, Bovis Lend Lease

Indemnity limits – what do they really mean?
by John D. Wright, JD Associates

Construction Law Vol. 20 Issue 7 August/September 2009

contains the following articles:

Always check for meaning
by Michael Phipps, Thurston Consultants
(on JCT Project Bank Accounts and Pre-Construction Services Agreement)

Is completion practically understood?
by Hamish Lal, Dundas & Wilson
(on meaning of practical completion)

FIDIC goes for Gold
by Khalid Ramzan, Pinsent Masons
(on DBO Contract 2008)

Defects and damage – extent of insurance cover
by John D. Wright, JD Risk Associates

NHS Lift and EU procurement rules
by Sarah Pengelly, MacRoberts

Public Contracts Regulations Breach

McLaughlin & Harvey Ltd v Department of Finance and Personnel
[2009] 122 Con LR 157 (No. 1) N. Ireland QBD
                                   169 (No. 2)
                                   194 (No. 3)
Contractors McLaughlin & Harvey were aggrieved at not being included in a Northern Ireland Government framework agreement. They sought to challenge the decision. In (No. 1) they unsuccessfully applied for an injunction to prevent the award of the agreement; the court refused the injunction on the balance of convenience because damages would be an adequate remedy and because an injunction would delay the commencement of public works. In the main trial (No. 2), it was noted that the client's tender evaluation panel had not been selected at the tender stage. When it was formed, it drew up an evaluation sheet with additional weightings for sub-categories. Crucially, these were not disclosed to the tenderers, nor were they predictable. This was a breach of the transparency requirements of the Public Contracts Regulations 2006. In (No. 3) reported in BLR and noted in May 2009 issue, 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 to add the claimant's name to the list of successful tenderers. Damages would be available where contracts had been entered into.

EU Defence Procurement

On August 20 2009 the EU Official Journal carried the text of Directive 2009/81/EC on the coordination of procedures for the award of works contracts, supply contracts and service contracts by contracting authorities/entities in the fields of defence and security. Although the Directive seeks to promote transparency and free competition as in other directives, there is recognition of special considerations applicable to defence procurement.


Conditions Precedent

W. Hing Construction Co. Ltd v Boost Investment Ltd [2009] BLR 339 Hong Kong Court
In a project for renovation of a shopping centre under the Hong Kong General Conditions of Contract, the claimant contractor sought an extension of time. The court held that it had satisfied the condition precedent for grant of extension of time, which the defendant employer contested, by identifying and reporting the cause of the delay. The employer's architect's letter was not a valid extension of time. The architect had not certified that the contractor ought reasonably to have completed by the specified or extended Date for Completion. By failing to do so, the architect caused the employer to lose its right to claim liquidated damages. The court had no power to issue such a certificate to make good its deficiency.

Fixed Price Contract

SW1 Ltd v P&I Data Services Ltd [2009] Con LJ Vol. 25 No. 5 CA
Already reported in BLR, the Court of Appeal dismissed an appeal by the defendant main contractor against a finding by the judge that it had entered into a fixed price sub-contract with the claimant sub-contractor. The claimant having successfully completed the work, the main contractor could not seek any reduction in price. The main contractor argued unsuccessfully that the sub-contract was a unit-priced contract. As it was a fixed-price contract, even a variation would not automatically vary the price: certainly, simply removing part of the works would not do so.

Construction Law Journal 2009 Vol. 25 No. 5

contains the following articles:

Protection against contractor insolvency by bonds
by Jane Jenkins and Pauline Page, Freshfields, London

Minor defects in construction projects: a comparative approach
by Eric Franco Regjo, King's College London

Stage Payments

Cheltan Pty Ltd v Stanton [2009] 122 Con LR 110 District Court NSW
This Australian case, decided in 2001, is reported on the issue of accrual of right to stage payments. Approving the view of Hudson, the court held that effective and satisfactory completion of the required stage was required before any entitlement to apply for stage payment arose. Failure to install six windows would not be a minor defect/omission for these purposes and no entitlement to apply for payment arose.


Damages In Nuisance

Dobson v Thames Water Utilities Ltd [2009] BLR 287 and [2009] 122 Con LR 32 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.

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

CA Vicarious Liability Reversal

Biffa Waste Services Ltd v Maschinen Fabrik Ernst Hese [2009] 122 Con LR 1 CA
Already reported in BLR, the Court of Appeal reversed the decision of the TCC (reported in 118 Con LR) on the scope of vicarious liability for the actions of non-employees. The TCC had been wrong to equate 'supervision' with 'control'. The case arose out of a fire at a domestic waste plant following welding works carried out by non-employees of the defendants.

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

See Kajima UK Engineering v Underwriter Insurance Co. under Keating Chambers Reported Cases on the effect of notification of defects on the scope of insurance cover.

Real Danger Needed For Nuisance

Birmingham Development Co. Ltd v Tyler [2009] 122 Con LR 207 CA
Already reported in BLR, the Court of Appeal held that it was insufficient for an action in nuisance that the claimant was fearful of the consequences of the defendant's actions. It was necessary that the fear should be well-founded, meaning that the activities were actually dangerous and constituted a nuisance. The claimant's appeal was dismissed.

Damages In Tree Roots Case

Charlton v Northern Structural Services Ltd [2009] 122 Con LR 237 TCC
The defendant structural engineers were found negligent in advising the removal of large trees near the claimant's property, causing heave, resulting in foundation cracking. The main interest of the case is the discussion of the measure of damages as diminution in value caused by stigma, where no remedial works were required.


Workspace Management Ltd v YJL London Ltd [2009] EWHC 2017 TCC
Although an adjudicator did not require the repayment of a sum overpaid, in finding that there had been an overpayment, the requirement followed logically by reasonable inference, if not express. The argument that the adjudicator had no jurisdiction to consider whether an overpayment had been made failed. Although the reference was to consider sums claimed by claimant from defendant, the adjudicator was not required to stop his valuation without reaching a final result. The defendant was entitled to use the sum overpaid as a set-off against an arbitration award against it because it was not a mere counterclaim but a decision binding on the claimant.
Alan Steynor

Bovis Lend Lease Ltd v Trustees of the London Clinic [2009] 123 Con LR 15 TCC
Already reported in CILL, 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 QC, Simon Hughes)
Finola O'Farrell QC

Brookfield Construction (UK) Ltd v Foster & Partners Ltd [2009] 123 Con LR 47 TCC
Already reported in BLR, the latest case in the Wembley Stadium litigation concerned a clause in the consultancy agreement for the provision of architectural services between an architectural consortium and the design and build contractor. 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. NB Brookfield was formerly Multiplex.
Alice Sims

Kajima UK Engineering Ltd v Underwriter Insurance Co Ltd [2009] 122 Con LR 123 TCC
The defendant insurance company had provided the claimant main contractor with indemnity insurance during the performance of a design and build contract for a block of flats. Notification by the claimant was only effective in respect of defects and damage to the works during the period of cover. The scope did not extend to defects revealed by later investigations, since they could not be connected to those within the period of cover.
Adrian Williamson QC

Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd [2009] 122 Con LR 66 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

Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2009] 122 Con LR 88 TCC
Note that Con LR gives this as (No 3) instead of (No 6).

This costs hearing in the long-running Wembley Stadium litigation was already noted in the December 2008 issue and received widespread media coverage. The claimant contractor, Multiplex, had obtained Ł6.1 million net after judgments on many issues. The court rejected Multiplex's suggestion that Cleveland Bridge should pay all the costs, but held that Multiplex should be treated as the successful party and entitled to a costs order, because Cleveland Bridge had not accepted that it owed anything. However, Multiplex had failed comprehensively on some points and a proportionate costs order was perfectly practicable and appropriate. The judgment sets out the breakdown and reasoning on all issues, but overall Cleveland Bridge had to pay 20% of the costs of the action, increased from 10% because of their failure to make an offer.
Paul Buckingham
Adrian Williamson QC
Simon Hargreaves
Lucy Garrett

Fitzpatrick Contractors Ltd v Tyco Fire and Integrated Solutions (UK) Ltd (No 2) [2009] 123 Con LR 69 TCC
N.B. Reported as (No 3) in judgment.

Fitzpatrick failed in its attempt to obtain 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. The claimant, Fitzpatrick, had made a Part 36 offer to settle proceedings with Tyco, which Tyco eventually accepted. This costs hearing derived from a dispute on the effect of a liquidated damages cap.
Marc Rowlands
David Thomas QC
Jonathan Lee

Quartzelec Ltd v Honeywell Control Systems Ltd [2009] BLR 328 TCC
Already reported in CILL, 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

The Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] 122 Con LR 55 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

YCMS Ltd v Grabiner [2009] 123 Con LR 202 TCC
Already reported in BLR, 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

Gwelhayl Ltd v Midas Construction Ltd [2009] 123 Con LR 91 TCC
Already reported in CILL, the client became involved in a final account dispute with the contractor and sought pre-action disclosure of documents from Bailey, the contract administrator. The court refused to order pre-action disclosure since no arguable claim existed against Bailey. However, Bailey was ordered to deliver up documents actually belonging to Gwelhayl, although this was subject to payment into court of outstanding fees, which gave Bailey a lien over them.
Jonathan Lee

North Midland Construction Plc v AE&E Lentjes UK Ltd [2009] CILL 2736 TCC
Lentjes were turnkey contractors for gas desulphurisation units on power stations, with NMC as their sub-contractors. Before adjudication of final account disputes, the issue arose as to whether the sub-contract works might be excluded from the definition of 'construction operations' under s.105 HGCR Act, as relating to power generation. Although Lentjes argued for the 'broad' approach, by which all construction works necessary to achieve the aims of the owner/main contractor would be excluded, the court preferred the 'narrow' approach, meaning that the Act would apply. Construction works for use with the plant would not come within the exclusion.
Stephen Furst QC

Primus Build Ltd v Pompey Centre Ltd [2009] CILL 2739 TCC
Primus was engaged by Pompey, the client, to provide construction management services in the construction of a hotel and office building. Primus issued a Notice of Adjudication in respect of its claim for loss of profit, following exclusion of the office element from the project. Pompey argued that the Notice of Adjudication had not been served correctly, as the contract required any notice under the Contract to be 'delivered personally' or faxed. The court rejected this argument, finding that 'actual delivery' met the requirement and the method was irrelevant. However, Pompey successfully resisted enforcement of the adjudicator's decision on the ground that the adjudicator had exceeded his jurisdiction. He had looked at the accounts, which both parties agreed were irrelevant and had breached natural justice in using his own figure for calculating loss of profit rather than the ones adduced.
Gideon Scott Holland

Seele Austria GmBH & Co KG v Tokio Marine Europe Insurance Ltd [2009] EWHC 2066 TCC LAWTEL
In the long running litigation concerning recoverability of cost of access damage and other costs of repairing defective windows under an insurance policy, the claimant served amended particulars of claim. The defendant insurer successfully argued that these constituted a new case, which differed substantially from the original claim. It was at least arguably caught by the limitation provisions and the court would not allow the amended particulars of claim to be used to plead a new case, within its judicial decision.
Adrian Williamson QC


Settlement With Third Party

Siemens Building Technologies FE Ltd v Supershield Ltd [2009] TCLR 7 TCC
Already reported in CILL, 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.

Construction Law Vol. 20 Issue No. 7 August/September 2009

contains the following articles:

Keeping a lid on costs
by James Pickavance, Herbert Smith

Reform from the specialist's position
by Marion Rich, British Constructional Steelwork Association and Rudi Klein, Specialist Engineering Contractors' Group

No compulsory mediation yet
by John Sheils, Shadbolt

Conditional Fee Agreement And Costs Estimate

Woolley v Haden Building Services Ltd [2009] Con LJ Vol. 25 No. 5 p.388 High Court (Costs Office)
This is an (non-construction) industrial disease case. The defendants, employers of the deceased, whose widow and dependants sued, argued that the claimants' costs should be limited to the estimate of costs set out in the allocation questionnaire (subject to a 31% margin). This was much lower than the amount claimed on assessment. The court held that the defendants could not show that they had placed reasonable reliance on the estimate and so the costs should not be limited to that estimate.

The Commercial Litigation Journal No. 26 July/August 2009

contains the following articles:

Shopping at the EPO
by Stephen Killin and Erica Orton, Venner Shipley LLP
(on patent forums)

Working for the clampdown
by Jeremy Summers, Russell Jones & Walker
(on the US Foreign and Corrupt Practices Act)

Because they're worth it
by Kirsten Gilbert, Marks & Clerk
(on unfair competition)

The Italian job
by Francesca Rolla and Gabriele Bonivento, Lovells, Milan
(on class action laws in Italy)

Peeping behind the curtain
by Stephen Barker, Hill Hofstetter
(on mediation privilege)

Taking a break
by Nyree Applegarth, Higgs & Sons
(on break clauses in commercial leases)

Unsilent witness
by Ben Douglas-Jones, 5 Paper Buildings and James Stanbury, RGL Forensics
(on forensic accountant experts)

Risking it all
by James Block, The Judge
(on litigation funding options)

Quantum Meriut Requirements

MSM Consulting Ltd v United Republic of Tanzania [2009] 123 Con LR 154 QBD
This is not a construction case, being concerned with estate agents seeking payment for finding a property for the Tanzanian High Commission. The claimants had found the property eventually purchased, but had never been instructed by the Tanzanian government. They claimed a quantum meruit, which was refused by the court. The value of the case, as stated by the Con LR Editors, is in providing "guidance as to the circumstances in which a claimant is entitled to payment on a quantum meruit basis for work done in anticipation of a contract which does not materialise". There is no single guiding principle and cases are likely to be very dependent on facts.

Lloyd's Maritime and Commercial Law Quarterly [2009] Part 3 August 2009

contains the following articles:

Contractual prohibitions against assignment
by Roy Goode, St. John's College, Oxford

The effect of subsequent increases of risk on contracts of insurance
by Marcus Smith, Fountain Court Chambers

Interest On Late Payment

Ruttle Plant Hire Ltd v Secretary of State for EFRA [2009] BLR 301 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.

See Multiplex Constructions v Cleveland Bridge under Keating Chambers Reported Cases on costs order where question as to who was successful party disputed and appropriateness of proportionate costs order.

See Fitzpatrick Contractors v Tyco under Keating Chambers Reported Cases on criteria for award of indemnity costs.

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

Pre-Contract Evidence In Interpretation

Chartbrook Ltd v Persimmon Homes Ltd [2009] CILL 2729 HL
This is a property development case rather than construction, concerning the agreement between Chartbrook and Persimmon, by which Persimmon would develop Chartbrook's site, giving Chartbrook a stated price. This price became the subject of a dispute between the parties. The issue for the House of Lords was the correct interpretation of the contract provisions. Lord Hoffmann's speech, and a number of (obiter) comments, attracted much attention on the role of evidence of pre-contractual evidence. It was suggested that there could be exceptions or limitations to the rule that excludes all evidence of pre-contract negotiation in interpreting a contract, although the basic rule was upheld. Pre-contract evidence could be used to give contextual background. It could also be used to support a claim for rectification or an estoppel.

See Seele Austria v Tokio Marine Europe Insurance under Keating Chambers Reported Cases on barring of new case arising from amendment of particulars of claim.


Public Procurement
London: 17th September 2009
Sarah Hannaford QC

Defects and their Legal Remedies
Society of Construction Law / King's College
London: 17th September 2009
Nerys Jefford QC

NEC3 Contracts and Public Procurement
Bristol: 25th September 2009
Philip Boulding QC
Fionnuala McCredie

Rights of Light - claims and remedies
Birmingham: 1st October 2009
Sarah Hannaford QC

Choosing your own dispute resolution provisions
Cross Border Arbitration & Dispute Resolution Conference
London: 18th to 20th November 2009
John Marrin 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.


To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.