ADJUDICATION
Berry Piling Systems Ltd v Sheer Projects Ltd [2012] BLM Vol 29 No 3 TCC
Following an adjudication that decided upon entitlement to work done by a sub-contractor, the court rejected the sub-contractor's case that the adjudicator had breached the principles of natural justice because he had referred to a fact which had not been raised with the parties. It was also held that the defendants had failed to make out a case for a stay of enforcement on grounds relating to the financial state of the claimants. As such, the claimants were entitled to enforce the decision of the adjudicator.
R and C Electrical Engineers Ltd v Shaylor Construction Ltd - [2012] CILL 3184 TCC
R & C issued a Part 8 application seeking a declaration for forthwith payment of an amount determined by the Adjudicator. The sum was to be paid when it fell due, pursuant to pay-when-certified provisions in the 'Main Contract'. R & C contended that the provisions in the Main Contract for certification had broken down, so that the condition placed on payment by the Adjudicator was invalid. The court held that there was a difference between circumstances which prevent the contractual machinery being operated and those in which one party refuses to operate it. There was nothing to prevent Shaylor from setting off against the sum found due by the Adjudicator any sum that it would have been entitled to set-off against either the Final Sub-Contract sum or the Final Payment itself.
Highlands and Islands Airports Limited v Shetland Islands Council [2012] BLM Vol 29 No 5 CSOH
In this case, an adjudicator sought informal legal advice from senior counsel in respect of a contractual clause without advising either of the contracting parties. The court held that failure to consult on a point or issue that is either decisive or of considerable potential importance to the outcome of a decision, and not peripheral or irrelevant, amounts to a material breach. The adjudicator's question to counsel was central to the quantification of the largest part of the award and was therefore vitiated by a material breach of natural justice. Further, the dispute which was the subject of that decision was a single issue dispute, and could not be severed from the rest of the decision.
Specialist Insulation Ltd v Pro-Duct (Fife) Ltd - [2012] BLM Vol 29 No 6 CSOH
The central issue in this case was whether the parties had agreed for any dispute to be settled by adjudication. Specialist referred a dispute to adjudication relying on a clause contained in Pro-Ducts's documents, which Pro-Duct disputed on the basis that its own standard terms had not formed part of the contract (an argument not originally run during the adjudication). The court held that Pro-Duct had failed to incorporate its own terms into the contract and as such there was no entitlement to adjudicate. Lord Malcolm agreed with the English Court of Appeal's decision in Tekdata Interconnections Ltd v Amphenol Ltd, that in any battle of the forms-type case what is required is an objective assessment of what the parties must be taken to have intended. The court further rejected Specialist's argument that Pro-Duct had waived its right to challenge the validity of the adjudication by participating in it. Pro-Duct's position had been consistent throughout, even if the legal ground of challenge had changed.
ARBITRATION AND DISPUTE RESOLUTION
Mediation figures show increase
On the up Law Society Gazette 17 May 2012
CEDR's 'Mediation Audit 2012' shows the number of civil and commercial mediations increasing by one third and value by almost a half, over the last 2 years.
The survey covered 238 mediators and there was a separate survey of lawyers. The annual number of mediations is said to have risen from 6,000 to 8,000 in these categories and the value is up 47% from £5.1 billion to £7.5 billion. Annual fee income from mediation is put at £20 million and the settlement rate at 90%.
The market according to CEDR is dominated by about 100 mediators including some 70 lawyers, who are appointed to some 85% of commercial mediations outside of formal schemes.
The most successful mediator reported an average of £8,500 fees per case and an annual workload of 80 cases. The average for experienced mediators is £4,279 per case, up 24% over 2 years.
Newer mediators find it hard to get work, mainly averaging 4 per year, with average fees at £1,517 per case, up 9% over 2 years.
Mealeys International Arbitration Report Vol. 27 Issue 5 May 2012
contains the following articles:
Spanish court denies recognition of Italian title of nobility
by Calvin Hamilton and Gabriela Torres, Hamilton, Madrid
Swings and roundabouts: developments in arbitration in Australia
by AA de Fina
Role of natural justice in making of an additional award
by Darius Chan, Wilmer Cutler Pickering Hale & Dorr, London
The character of international arbitration under the Swiss Ruler, June 2012 Edition
by Philip Landolt, Landolt & Koch, Geneva
Separability and the 'Russian Nesting Dolls" effect: Mortenson v Saunders Concrete
by Colm McInerney, Skadden Arps State Meagher & Flom, New York
SGS: the saga continues (on umbrella clauses in BITs)
by Richard Allen and Ekaterina Finkel
Global Arbitration Review
Vol. 7 Issue 2
contains the following articles:
Children of the revolution
(on the Iran-United States Claims Tribunal)
by Sebastian Perry
Arbitrating's no breeze in Belize
by Alison Ross
The State of arbitration
by Charles Adams, Akin Gump, Geneva
Global Arbitration Review
Vol. 7 Issue 3
contains the following articles:
Greece: a new Argentina?
by Kyriaki Karadelis
A spotlight on Brazil
by Alison Ross
Belle of the ball
by Clare Bolton (on arbitration in Brazil)
ICC Bulletin Vol. 22 No. 2
contains the following articles:
Achieving efficiency in international arbitration: some strategic suggestions for arbitral tribunals in ICC proceedings
by Mads Bryde Anderson, University of Copenhagen, Anders Ryssdal, Wiersholm and Stefan Lindskog, Swedish Supreme Court
Arbitration in Turkey: an analysis of Turkish arbitration legislation in the light of the UNCITRAL Model Law
by Ergun Özsunay, University of Istanbul and Murat
Özsunay
The impact of the EU 'Rome 1' Regulation on international litigation and arbitration, A-National Law, mandatory and overriding rules
by Guido Carducci, University of Paris Est.
Adverse inferences in international arbitration practice
by Simon Greenberg, Clifford Chance, Paris and Felix Lautenschlager
Mealey's International Arbitration Report Vol. 27 Issue
contains the following articles:
Partial annulment due to lack of guarantor's signature and scope of arbitration agreement in a distribution contract
by Calvin Hamilton and Alina Bondarenko, Hamilton, Madrid
Annulment of Swiss International Arbitration Awards for incompatibility with substantive public policy: first annulment in over twenty years
by Phillip Landbolt, Landbolt & Koch, Geneva
You can only smoke 'em if you got 'em: attempts to extinguish the Tobacco BIT claims
by Andy Moody and Cameron Forsaith, Eversheds, London
Analysis of and comments on two cases of pre-arbitration proceedings
by Yanming Yuang, Guangdong International Law Firm
Construction Law Journal
Vol. 28 Issue 1 2012
contains the following articles:
Compliance with and enforceability of a Dispute Board decision: recommendations by the International Beau-Rivage Palace Forum Working Group
by Pierre Genton and Paul Gélinas
Force majeure clauses
by Emma Kratochvilova, Herbert Smith, Tokyo
and Michael Mendelblat, Herbert Smith, London
Construction Act Review:
The new Construction Act:
Life after Part 8 of the LDEDC Act 2011
by Dominic Helps
Consequences of the omission of pre-arbitral mechanisms in Switzerland
by Jean-Pierre Morand and Sophie Roud, Carrard, Lausanne
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Lim Chin San v LW Infrastructure [2012] Part 1 BLR 1 SGHC
Following the settlement of a dispute between a contractor and subcontractor by arbitration, both parties submitted appeals to the High Court of Singapore. In the first appeal made by LCS, Prakash J upheld principles from English Common Law that time will only be put at large if there are acts of prevention which cause overall delay, and not when there are simply acts of prevention which may disrupt progress, regardless of how extensive or serious they may be. In the second appeal, the judge held that liquidated damages could not be claimed in the post-termination period, but that the termination of the contract did not affect the claim for liquidated damages whichaccrued before the point of termination.
Baht v Masshouse Developments Ltd [2012] BLM Vol 29 No 4 EWHC
The court held, in the context of a contract to develop apartments in a block of flats, that the defendant developers had committed a repudiatory breach of the contract by failing to complete building work 'with all due diligence' because they had delayed by two years in completing the work. As such, the claimant purchasers of the apartments were entitled to recover their deposits previously paid.
Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) [2012] Part 5 BLR 223 WASC
Spiers argued before the Supreme Court of Western Australia for the use of the prevention principle to set time at large, following the decision by the trial judge that it was not entitled to the extension of time for the completion of work, because it had not given notice as required by a term under the contract. The court held (obiter) that the purpose of the relevant contractual term was to prevent the prevention principle from setting time at large. Landtec was not entitled to liquidated damages for the delay period between the actual date of completion and the contractually agreed date of completion, for which Spiers should have been given an extension of time. It was held that the liquidated damages provision in the contract was a penalty and not a genuine pre-estimate of the damages to which Landtec would be entitled.
Cardona and Brownscombe v Brown and Brown [2012] CLJ Vol 28 No 2 VSC
The plaintiffs challenged the decision of the Victorian Civil and Administrative Tribunal (VCAT), on the basis of an error in law, that each stage of construction in a project was separate and that a subsequent progress payment could become payable even though an earlier stage had not been completed. The Supreme Court of Victoria upheld this earlier decision. A claim at a particular stage in a project depends upon whether works are sufficiently progressed to satisfy the definition of that stage, and not whether an earlier defined staged has been reached.
Construction Law Vol. 23 Issue 2
contains the following articles:
Courts still reluctant to imply terms
by Andy Green, Pinsent Masons
Courts back 'rough and ready' view
by Mark Lloyd-Williams and Michael Mendelblat, Herbert Smith
on adjudication
Scottish courts back speedy arbitration
by Shona Frame, MacRoberts
What happens next?
by Nick Warrington, Gateley
on contractor insolvency
Planned early negotiation processes
by Tia Starey, Clyde & Co
Construction Law Vol. 23 Issue 3
contains the following articles:
Adjudicator's decisions and natural justice
by Gurbinder Grewal, SNR Denton
Progress cannot be implied
by Ruth van Dreumel and Andrew Outram, Wragge & Co
Bonds in action
by Fiona Rossetter, Dundas & Wilson
Pay attention to pay less notices
by Kim Teichmann, Thomas Eggar
Misrepresentation minefield
by Paul Morgan and Tristan Thompson, Clyde & Co.
Construction Law Vol. 23 Issue 4
contains the following articles:
The concept of time at large
by Andrew Batty, Pinsent Masons
When advice on the law is not legal advice
by Edward Freeman, Clyde & Co
Construction Law Vol. 23 Issue 6
contains the following articles:
Force majeure – the devil is in the detail
by Ruth Wilkinson, Dundas & Wilson
An appeal to common sense
by Paul Morgan, Clyde & Co
Liability can rest on probable cause
by Michael Mendelblat and Ann Levin, Herbert Smith
Construction Law Vol. 23 Issue 7
August/September 2012
contains the following articles:
When is a mistake a mistake?
by William Cursham, Gateley
(on Daventry DC v Daventry & District Housing) in the CA)
Court advocated mediation
by Alexander Whyatt, Clyde & Co.
Payment for Pre-Contract work
Liability for work done where contract is denied: contractual and restitutionary approaches
by Man Yip, Singapore Management University and Yihan Goh, National University of Singapore
Lloyd's Maritime and Commercial Law Quarterly 2012 Part 2
The article considers how contract and restitution deal with the situation where parties commence work before the conclusion of a formal contract. The authors argue that both contract and unjust enrichment have a role to play. They object to such cases being resolved through implied contracts as artificially interpreting the parties' intentions. They seek to clarify the 'enrichment' and 'unjust' elements of unjust enrichment in restitution.
CONTRACT AND PROCUREMENT LAW
McLaughlin and Harvey Ltd v Department of Finance and Personnel [2012] Part 1 BLR 1 NICA
The Northern Ireland Court of Appeal, in proceedings linked with the Henry Brothers decision reported on the same day, dismissed both grounds in the Department's appeal against the setting aside of the framework agreement by the trial judge. First, the NICA declined to disturb the judge's decision that the Department's failure to disclose topics and weightings attached to them could have affected the preparation of its tender. It found that the application of the tests in ATI v ACTV Venetzia was a matter of fact for the national court, and that there was nothing to refer to the ECJ. Second, the NICA dismissed the Department's jurisdictional challenge to the setting aside of the framework agreement as a remedy adopted by the trial judge.
Construction Law Vol. 23 Issue 2
contains the following articles:
Skip over insurance at your peril
by Michael Phipps, Thurston Consultants
on retention bonds in JCT With Quantities 2011
Procurement for growth and savings
by David Mosey, Trowers & Hamlins
Whose employee?
by John Wright, JD Risk Associates
Construction Law Vol. 23 Issue 3
contains the following articles:
User-centred contracts needed
by Michael Phipps, Thurston Consultants
on JCT With Quantities 2011
NEC 3 and Option X12
by Vijay Bange, Trowers & Hamlins
Construction Law Vol. 23 Issue 4
contains the following articles:
Name that specialist
by Michael Phipps, Thurston Consultants
on JCT's new Named Specialist Update
Project Bank Accounts
by Christopher Pedder, Pinsent Masons
Public procurement challenges
by Lindy Patterson QC, Dundas & Wilson
FIDIC provision might be no alternative
by Estelle Katsimani and Michael Mendelblat, Herbert Smith
on FIDIC sub-contract and ICC Rules on multi-party arbitrations
Insurance policies not fit for purpose
by Peter Stockill, Berrymans Lace Mawer
Risk financing and management
by John Wright, JD Risk Associates
Construction Law Vol. 23 Issue 5
contains the following articles:
Expect more specialist updates
by Michael Phipps, Thurston Consultants
(not Michael Furmston, as the journal has it)
on JCT Named Specialist Update
Project insurance not for the small projects
by John Wright, JD Risk Associates
Construction Law Vol. 23 Issue 6
contains the following articles:
Beware of imitations
by Michael Phipps, Thurston Consultants
on the JCT Named Specialist Update
Courts main drivers on public procurement
by Christopher Pedder and Angela Fletcher, Trowers & Hamlins
Contracts getting ready for BIM
by Shona Frame, MacRoberts
Consider your exit strategy
by Akin Akinbode, SNR Denton
Design and build insurance cover
by John Wright, JD Risk Associates
Construction Law Vol. 23 Issue 7
August/September 2012
contains the following articles:
Care needed with termination
by Michael Phipps, Thurston Consultants on JCT With Contractor's Design termination provisions
How secure is your security?
by Jane Miles, SNR Denton
UK Bribery Act – one year on
by Val Surgenor, MacRoberts
Avoiding unintentional pitfalls
by Will Buckby and Andrew Croft, Beale & Co
on letters of intent
Asbestosis liability clarified
by John Wright, JD Risk Associates
Brighter later for smaller firms
by Will Cooper, Clyde & Co
Construction Law Journal Vol. 28 No. 2 2012
contains the following articles:
The evolving reality of tendering contracts – some Commonwealth comparisons
by David Percy QC, University of Alberta
Islamic Finance and Construction – is there a place for one in the other?
by Dina Elshurafa, White & Case, London
Key changes to the Irish Public Works Contracts
By Karen Killoran, Arthur Cox, Dublin
GENERAL AND PROFESSIONAL NEGLIGENCE
United Marine Aggregates Ltd v GM Welding & Engineering Ltd [2012] BLM Vol 29 No 5 TCC
In this case, United Marine sought to hold GM Welding liable in negligence for a serious fire that took place at its plant. The court held that the duty of care owed to United Marine was to use reasonable care and to take certain specified precautions. Ramsey J stated that the concept of reasonable care was not an absolute standard that existed independently of its context. The court must consider what is reasonable as between the parties in the context of a particular operation.
Lawrence v Fen Tigers Ltd [2012] BLM Vol. 29 No.2 CA
The Court of Appeal held that noise created by car racing on the defendant's land did not amount to nuisance. Car racing was an established part of the locality, and there was no evidence to support the proposition that the defendants had failed to comply with the terms set out in the planning permission on which racing could be held.
Barr v Biffa Waste Services Ltd [2012] BLM Vol. 29 No. 4 CA
This decision was reported in [2011] 137 Con LR 125 and noted in Issue 3. The nuisance claim by local residents against operators of a landfill site was dismissed by Coulson J, since the operators were operating within the detailed terms of their permit and without negligence. Despite the odours emanating, the use of the site amounted to a reasonable user and not a nuisance, although statutory authority could not be relied on. The most interesting element of the decision may be the role of negligence in establishing nuisance: the BLM Editors note that "The finding that negligence is a necessary ingredient of these claims may prove to be controversial given that the relationship between negligence and nuisance has proved to be a vexed one".
PRACTICE AND PROCEDURE
Citation of authorities
Practice Direction: Citation of Authorities was issued by the Lord Chief Justice on 28 March 2012 to clarify practice and procedure for citation of authorities in Senior Courts of England Wales.
It contains confirmation of the hierarchy of reports, with the Official Law Reports at the top of the list and also details of the photocopies/electronic versions of cases to be supplied when cited.
CA Mediation Scheme
The CA Mediation Scheme has a new pilot project managed by CEDR. It applies to all personal injury and contract claims up to £100,000 and will involve an automatic recommendation to mediation unless a judge exceptionally directs otherwise. A panel of accredited mediators will be nominated by CEDR.
Walter Lilly & Co Ltd v Mackay and another [2012] Part 5 BLR 249 TCC
Proceedings brought against the defendants, arising from a substantial delay in the completion of work, resulted in a trial in March 2012. On the first day of trial, WLC applied for the disclosure of all correspondence and documents created by a firm of claims consultants that the defendants claimed was subject to legal professional privilege. Akenhead J granted their disclosure, holding that legal professional privilege only applied in relation to qualified lawyers, and that the claims consultants had been retained to provide contractual and adjudication advice, and as such were not providing a service as qualified lawyers.
Withdrawal of admission
Northern Rock (Asset Management) plc v Chancellors Associates Ltd [2012] TCLR 1 TCC
The defendant valuers' representative mistakenly ticked the box 'Defendant admits this claim' in acknowledging service in a negligent valuation case. The TCC Registry stamped the claim 'Judgment for Claimant in default' without it going to a judge. The valuers succeeded in having the irregular judgment set aside and the mistaken admission withdrawn, despite the claimant's argument that the court had no such jurisdiction. The TCC held that it could do so under CPR Part 3.1 (z)(m) where just and reasonable.
Costs estimate exceeded
Minkin v Cawdery Kaye Fireman & Taylor [2012] EWCA Civ. 546 CA
The CA overturned the finding of the High Court that a client had been entitled to withhold payment of a solicitor's bill of costs because it exceeded the original estimate by a wide margin. The CA emphasised the fact that the solicitors terms of business sent to the client made clear that estimates were not fixed or binding and refusal to pay was not justified. The appeal was allowed.
ACD (Landscape Architects) Limited v (1) Robert Overall (2) Cookham Construction Limited [2012] CILL 3145 TCC
The court held that an expert report was not privileged if its contents were extensively referred to in a witness statement used as evidence in an application to amend a defence and counterclaim prior to a strike out hearing. In these circumstances, the expert report had been 'deployed', meaning that privilege was waived and the report was discloseable. It was also held that an adjournment of the strike out application hearing was appropriate, to allow
ACD to have sufficient time to consider its contents.
Inframatrix Investments Limited v Dean Construction Limited [2012]CILL 3145 CA
The court, at first instance, rejected Inframatrix's claim for breach of contract as a result of poor workmanship in work carried out on its factory, on the basis that it was defended by a contractual limitation clause which time barred proceedings after the expiry of one year after the provision of services. The Court of Appeal upheld this decision, rejecting submissions that the clause only applied where the practical completion of services was never going to be achieved and that DCL should not be entitled to a contractual construction that would enable it to benefit from its own wrong. It was held that proceedings were therefore time-barred, and that an on-site meeting, and the inspection and production of a report, did not qualify as services within the meaning of services in the contractual clause.
West African Gas Pipeline Company Limited v Willbros Global Holdings Inc [2012] CILL 3152 TCC
WAPCo brought proceedings against WGH seeking recovery for money under a guarantee, following the termination of an EPC contract with its EPC Contractor, and the use of other contractors in the construction of an oil pipeline in West Africa. The court held that WGH was entitled to a wasted costs order for WAPCO's piecemeal and deficient disclosure of documents. WGH was entitled to recover the costs of its second application for disclosure, as well as a high percentage of its costs in attempting to resolve WAPCO's poor disclosure. The court, however, refused to vary costs, which were made costs in the case, relating to an earlier disclosure application.
Newman v Framewood Manor Management C Ltd [2012] BLM Vol 29 No 3 CA
The Court of Appeal held that the claimant under a 999 year lease was entitled to claim damages for loss of amenity arising from the breaches of covenants relating to her apartment. The Court rejected the defendant's reliance on an exoneration clause in a contract between the two parties.
Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] BLM Vol 29 No 3 EWHC
The claimants appealed to the High Court under s69 of the Arbitration Act 1996 arguing that a settlement agreement was voidable on the ground that it had been entered into as a result of the application of economic duress. Mr Justice Cooke, in deciding upon the meaning of 'illegitimate pressure' in an economic duress claim, affirmed that conduct which is not unlawful, can amount to illegitimate pressure, though that would be unusual. He also held that both a past unlawful act, and the threat of a future unlawful act, can amount to illegitimate pressure in certain circumstances.
Samarenko v Dawn Hill House Ltd [2012] BLM Vol 29 No 4 April 2012 CA
The claimant sought a declaration that the contract for the sale of land between the parties had been validly terminated after the defendant had failed to pay a deposit within a prescribed time frame. The Court of Appeal held that the breach of a contractual obligation to pay a deposit by a particular time in the sale of land amounts to a repudiatory breach of contract. However, it was held that the same is not true of a failure to comply with a time of essence notice.
Golden Ocean Group Ltd v (1) Salgaocar Mining Industries Private Ltd (2) Mr Anvil V Salgocar [2012] CILL 3161 CA
In dismissing an appeal against the decision of the Commercial Court, the Court of Appeal held that a contract of guarantee is enforceable when contained, not in a single document, but in a series of linked email documents. The Court of Appeal also established that there was a good arguable case that the electronic signature by the chartering broker on one of the emails was sufficient to authenticate the guarantee under the Statute of Frauds 1677.
M3 Property Ltd v ZedHomes Ltd [2012] CILL 3174 TCC
In proceedings related to M3's claim for outstanding consultancy fees from Zed, M3 requested an order that an independent expert should be authorised to inspect all computer servers and back up servers used by Zed in the period from April 2007 to January 2011. Mr Justice Akenhead held that the court would not grant the order, under CPR Part 25.1, because it was not necessary or proportionate.
Higginson Securities (Developments) Ltd v Hodson [2012] CILL 3177 TCC
The Pre-Action Protocol for Construction and Engineering Disputes did not state that it was a mandatory provision for parties to hold a without prejudice meeting prior to the commencement of proceedings. In the instant case, it had been unnecessary for the defendant to apply for a stay of the claimant's proceedings in order to enable such a meeting to occur.
Jet2.com v Blackpool Airport Ltd - February [2012] CILL 3165; [2012] BLM Vol. 29 No. 4 CA
This decision was reported in [2011] BLM Vol. 28 No. 9 and noted in Issue 1. The court confirmed that there was no difference in meaning between contractual obligations to use 'best endeavours' and 'all reasonable endeavours'. The context was an agreement to promote an airline's low cost flights. However, the judge emphasised that, while they were the same in this contract, a different context could lead to a different interpretation.
The Commercial Litigation Journal No. 43 May/June 2012
contains the following articles:
Confidentiality: shadow boxing
(on Amp v Persons Unknown)
by Martin Meredith, Commercial Chambers
Services: staying in touch
(on service outside the jurisdiction)
by Andrew Emery, Malins Chambers
Privilege: Noah and the Flood
(on Flood v Times Newspapers)
by Phil Sherrell, Luke Arbuthnot and Astrid O'Reilly, Bird & Bird
Contract: Light work
(on Kingspan v Borealis – misrep. in supply contract)
by Anthony Greenwood and Leanna Mailer, Kennedys
Out of court (on Civil Restraint Orders on litigants in person)
by Greg Standing and Ian Weatherall, Wragge & Co
The cost of everything
(on third party funding)
by Nick Rowles-Davies, Vannin Capital
Doing your duty
(on GHLM Trading v Maroo – corporate governance)
by Alexander Fox and Clare Arthurs, Manches
Paper chase
(on document retention)
by Nicola Bridge, Joel Seager and Guy Francis, SJ Berwin
KEATING CHAMBERS REPORTED CASES
WW Gear Construction Ltd v McGee Group Ltd [2012] CILL 3204 TCC
During the course of an on-going adjudication between the parties, Gear Construction brought Part 8 proceedings seeking a declaration as to the meaning of a clause in the amended form of the JCT Trade Contract. By virtue of CPR 40.20, the court's power to grant a declaration was very wide and unfettered. However, it was settled law that there were obvious practical difficulties in permitting an application during an on-going adjudication. It would not be appropriate to make a declaration in this case as it would result in an unacceptable imposition on an adjudicator and one that would result in unfairness, misunderstandings or mistakes. The circumstances in which a court may consider granting a declaration are where both parties had agreed that the court should do so, with a view to assisting the adjudicator, and had also agreed to extend the adjudicator's time for making the decision in order to accommodate any determination by the court.
Gaynor Chambers Sarah Hannaford QC
Natas Group Ltd (in administration) v Styles & Wood Ltd [2012] 142 Con LR 179 TCC
This decision concerned a security for costs application made by the defendant. The claimant argued that the court's discretion to award security for costs should not be exercised, due to the availability of an ATE insurance policy taken out to cover any liability for costs. Akenhead J held hat there were genuine concerns and uncertainities relating to ATE insurance. It did not provide anywhere near as good or as certain cover as a payment into court or a bank guarantee, which are the more usual ways of providing security for costs. The defendant's application for security for costs succeeded.
Jonathan Selby
Lanes Group v Galliford Try [2012] BLM Vol. 29 No. 2 EWHC
This decision was reported in [2012] BLR 121.Galliford successfully appealed against the first instance finding of apparent bias against the adjudicator, the court using the same test for bias in adjudicators as for judges applying AMEC Capital Projects v White Friars (Stephen Furst QC and Jane Lemon and David Thomas QC) Lanes' appeals against the finding that the adjudicator had jurisdiction were unsuccessful.
John Marrin QC
Sprunt Ltd v London Borough of Camden [2012] BLM Vol. 29 No. 2 TCC
This decision was reported in [2012] CILL 3124. Building consultant Sprunt entered into a framework agreement with Camden LBC by which it provided consultancy services as architect. The dispute resolution provisions of the agreement enabled either party to refer disputes to arbitration, but identified Camden as the adjudicator nominating body. Sprunt referred a dispute instead to the RICS and Camden sought to resist enforcement of the decision on two grounds: absence of a contract in writing for (the old) s.107 purposes and absence of entitlement of Sprunt to refer a dispute to RICS. The court found in favour of Sprunt on both grounds. Sprunt's letter with an amended (reduced) fee proposal accepted by Camden expressly incorporated the terms of the framework agreement and was therefore an agreement in writing. The provision for a party to be the adjudicator-nominating body offended against s.108 and against policy. The Scheme would therefore apply, under which a reference to RICS was an appropriate nomination.
Justin Mort
Carillion Construction Ltd v Stephen Andrew Smith [2012] BLM Vol. 29 No. 2 TCC
This decision was reported in [2011] CILL 3097 TCC. Mr Smith, the claimant, had commenced a third adjudication under his own name, after his company, the sub-contractor, had attempted to recover loss and expense from Carillion, the main contractor, in two previous adjudications. Carillion objected to the third adjudicator's jurisdiction and obtained a declaration that the dispute in the third adjudication was sufficiently similar to that in the second to constitute the same dispute, despite the existence of additional material and argument not available in the second adjudication. The court considered Quietfield v Vascroft (Abdul Jinadu) and Benfield v Trudson (Hatton) (Piers Stansfield).
Simon Hargreaves QC
William Webb
Leander Construction Ltd v Mulalley and Co. Ltd [2012] CILL 3151 TCC
This decision was reported in [2012] BLR 152. Contractor Mulalley failed to demonstrate the need for the implication of a term as to regular and diligent progress as a matter of business efficacy. The withholding notices served on sub-contractor Leander were based on alleged failure to comply with the activity schedule.
Richard Coplin
Herbosch-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] CILL 3148; [2012] BLM Vol. 29 No. 3 TCC
This decision was reported in [2012] BLR 177. Enforcement of the adjudicator's decision was refused because the adjudicator had exceeded his jurisdiction by finding and addressing a method of assessment which formed no part of the dispute referred to him. The dispute between the employer, the Board, and the specialist marine contractor, HKM, concerned the removal of a wreck from the entrance to Dover Harbour. The adjudication was conducted under the ICE Rules.
Samuel Townend
Jessica Stephen
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.
This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb FRICS Barrister) Visiting Professor of Law, Oxford Brookes University.
