ADJUDICATION
Case Law Index
Construction Act Review
by Peter Sheridan and Dominic Helps, Shadbolt & Co,
Construction Law Journal (2008) Vol. 24 No. 8 p.698
The authors provide their 8th Annual review of the existing body of HGCR Act Case Law. It contains an alphabetical list of nearly 320 cases (if one includes appeals and a few relevant non-Act cases).
The case law subject matter index now has over 120 categories. A commendable effort has been made to provide sub-categories, which makes the latter index far more useful. A large category like Enforcement has 9 sub-categories, ranging from 'stay of execution' to costs.
See Balfour Beatty Construction Northern v Modus Corovest (Blackpool) under Keating Chambers Reported Cases on enforcement of adjudication and attempts to set-off a cross-claim.
See Air Design (Kent) v Deerglen (Jersey) under Keating Chambers Reported Cases on an adjudicator's jurisdiction to decide how many contracts the parties had made.
Alleged bias in nomination
Makers UK Ltd v Camden London Borough Council
[2008] BLM Vol. 25 No. 10 TCC
Already reported in BLR, Camden sought to challenge the
adjudicator's jurisdiction on the ground that he had been
improperly appointed by RIBA. Makers had contacted RIBA to request
the appointment of the adjudicator who was actually appointed. The
court rejected the existence of an implied term that neither party
should seek to influence the appointment. Since the nominating body
was under no obligation to accede to the representations, there was
no appearance of bias in appointing an adjudicator previously
requested by one of the parties.
See Birmingham City Council v Padison Construction under Keating Chambers Reported Cases on lack of jurisdiction to hear second adjudication of same dispute.
See Kier Regional v City and General Holborn under Keating Chambers Reported Cases on an attempt to use a third party debt order to enforce an adjudication award.
See Benfield Construction v Trudson (Hatton) under Keating Chambers Reported Cases on the jurisdiction of a third adjudicator over the same dispute.
ARBITRATION AND DISPUTE RESOLUTION
Arbitrability
The law governing arbitrability under the Arbitration
Act 1996
by Mihail Danov, Brunel University, Lloyds Maritime and Commercial
Law Quarterly 2008 Part 4 November p.536
Noting that the English legislation does not provide the
means to test for arbitrability, nor even to define it, the author
finds that there is no definitive answer to the question as to
which system of law would decide the point. There is, however,
extensive discussion by scholars as to how arbitrability should be
approached. The choice is between the law of the forum, the law of
the tribunal's seat or the law of the place of enforcement of
the award. The author argues for the law of the seat of the
tribunal.
Global Arbitration Review Vol. 3 Issue 6 2008
Derailment and delay tactics: some possible
solutions
by Wolfgang Peter, Python & Peter, Geneva
Dissents, concurrences and a necessary divide between
investment and commercial arbitration
by Laurence Shore and Kennth Juan Figueora, Gibson Dunn
& Crutcher, New York
Arbitration International Vol. 24 No. 4 2008
contains the following articles:
Parallel proceedings in international arbitration
by Bernardo Cremades and Ignacio Madalena, B Cremades y
Asociados, Madrid
Class action arbitrations – the challenge for
the business community
by Philip Allen Lacovara, Mayer Brown
Drafting arbitration agreements
by Prof. Aldo Frignani, University of Turin
Amicus submissions in investor-state arbitration after
Suez v Argentina
by Epaminontas Triantafilou, White & Case,
Washington DC
Current use of the UNCITRAL Arbitration Rules in the
context of investment arbitration
by Norbert Horn, University of Cologne
CIETAC Arbitration Clause revisited
by Howard Yinghao Yang, Morgan Lewis, New York
Decoding Singapore's International Arbitration Act
Section 12(7)
by Jean Ho, National University of Singapore
Global Arbitration Review
(Special Issue: European and Middle Eastern Arbitration Review
2009)
contains the following articles:
Ethics in European arbitration
by Paul Mitchard QC, Skadden Arps Slate Meagher &
Flom
The effects of insolvency on arbitration
proceedings
by David Foster and Simon Walsh, O'Melveny &
Myers
The future of investment treaty protection in Eastern
Europe
by Stanimir Alexandrov, Marinn Carlson and Joshua Robbins,
Sidley Austin
Lex Mercatoria revisited
by Antonio Hierro and Miguel Angel Melo, Cuatrecasas
State of necessity in investment arbitration
by Domenico di Pietro, Chiomenti Studio Legale
Worldwide freezing orders in disputes between states and
commercial parties
by Andrew Hutcheon, Watson Farley & Williams
Austria
by Franz Schwarz, Wilmer Cutler Pickering Hale and
Dorr
Czech Republic
by Vit Horacek, Glatzova & Co
Denmark: the boundaries between arbitration and civil
proceedings
by Niels Schiersing, Nordia Law
Finland: recent development
by Petteri Voti and Eva Stosrskubb, Dittmar &
Indrenius
France: is international arbitration at risk of being
nationalised?
by Tim Portwood, Bredin Prat
Arbitration in Germany
by Daniel Busse, Robert Hunter and Karl Pörnbacher,
Lovells
Greece
by Prokopis Dimitriadis and Konstantinos Rokas,
Lambadarios Law Offices
Arbitration in Ireland: a time of change
by John Doyle, Dillon Eustace
Lebanon
by Chawkat Houlla, Adib & Houalla Law Office
Netherlands
by Bommel van der Bend and Eelco Meerdink, De Brauw
Blackstone Westbroek
Modernising the Portuguese arbitration law
by Tania Cascais and Antonia Teixeira Duarte, Miranda
Correia Amendoeira & Associados
Romania
by Crenguta Leaua, Tanasescu Leaua Cadar
Russia
by Andrew Yukov and Alexander Khrenov, Yukov Khrenov &
Partners
Slovakia
by Robert Pruzinsky, Malata Pruzinsky Hegedus &
Partners and Vit Horacek, Glatzova & Co
Arbitration in Spain
by Felix Montero, Perez-Llorca
Sweden
by Eric Runesson and Simon Arvmyren, Sandart &
Partners
Switzerland: new procedure for the challenge of
international awards
by Michael Stepek and Oliver Ciric, Hogan &
Hartson
Turkey
by Urku Cosar, Cosar
Ukraine
by Marta Khomyak, Magisters
A review of English arbitration law in 2008
by Audley Sheppard and Leigh Crestohl, Clifford Chance
Arbitration Law Monthly December 2008/ January 2009 Vol.
9 Issue 1
contains the following articles:
Jurisdiction
on (Tsavliris Salvage (International) v Grain
Board of Iraq (state immunity in resisting
enforcement of an award)
Commencing on arbitration
on Taylor Woodrow Construction v RMD
Kwikform (David Thomas QC)
(time limits for commencement)
Challenging an award
on Sheltam Rail Co v Mirambo Holdings
(setting aside a notice of discontinuance)
Extension of time for arbitration appeals
on L Brown & Sons v Crosby Homes (North
West) (Marc Rowlands and Nerys Jefford QC)
(principles for extending time limits)
Interest
on Gater Assets v NAK Naftogaz Ukrainity (No.
2) (on the court's power to award interest up to
payment date)
Global Arbitration Review
(Special Report Arbitration Review 2009)
contains the following articles:
International arbitration in South and East Asia
– opportunities, challenges and the ICC experience
by Jason Fry and James Morrison, ICc
'The worst of times, the best of times'
by Adrian Winstanley, LCIA
International arbitration: past, present and
future
by Jun Bautista, International Centre for Dispute
Resolution
The arbitration landscape in Hong Kong
by Gary Soo, HKIAC
International arbitration in Asia
by Michael Moser, O'Melveny & Myers
FDI growth in Asia: the potential for treaty-based
investment protection
by Stanimir Alexandrov, Amelia Porges and Meredith
Moroney, Sidley Austin
Arbitration in Australia
by Doug Jones & Björn Gehle, Clayton Utz
Is CIETAC leading arbitration in Asia into a new era of
transparency?
by Paul Mitchard QC, Skadden Arps Slate Meagher and
Flom
Hong Kong
by Kathryn Sanger, Clifford Chance
Arbitration in Singapore 2008
by Justyn Jagger & Jeremy Choo, DLA Piper
Singapore
Arbitration clause unfair
Mylcrist Builders Ltd v Buck [2008] BLR 611
TCC
Already reported in CILL, the builders' standard terms
of contract contained an arbitration clause and they proposed to
refer a payment dispute to arbitration. The client, an individual
owner-occupier, succeeded in her argument (appearing in person)
that the clause was unfair pursuant to the Unfair Terms in Consumer
Contracts Regulations 1999. The builders failed in their argument
that they had achieved a valid appointment of an arbitrator under
s.17 Arbitration Act when the other party refused to appoint; this
was held only to apply to parties each appointing an arbitrator and
not to a sole arbitrator.
Global Arbitration Review
(Special Issue: Review of the Americas 2009)
contains the following articles:
Discovery in arbitration: recent developments
by James Carter, John Hardiman and Joseph Neuhaus,
Sullivan & Cromwell
Making investment treaties work for Latin America
by Stanimir Alexandrov, Nicolas Lloreda, Patricia
Grané and Meredith Moroney, Sidley Austin
Enforcing arbitration agreements amid
multi-jurisdictional litigation
by John Gardiner and Timothy Nelson, Skadden Arps Slate
Meagher and Flom
The New York Convention in Latin America: lessons from
recent court decisions
by Cristian Conejero Roos, Cuatrecasas
Argentina: the New York Convention and the issue of
arbitrability
by Guido Barbarosch, Richards Cardinal Tűtzer
Zabata & Zaefferes
Recent developments in Bermuda arbitration
by Jan Woloniecki and Peter Dunlop, Attride-Sterling and
Woloniecki
Enforcement of foreign arbitral awards in Brazil
by Fabiano Robalinho Cavalcanti, Escritoriode Advocacia
Sergio Bermudes
Cayman Islands: recent developments in arbitration
law
by Jeremy Walton and Chris Easdon, Appleby
National and international arbitration in Ecuador
by Rodrigo Jijon-Letort and Javier Robelino-Orellana,
Perez Bustamente & Ponce
Recognition and enforcement of international awards in
Uruguay
by Sandra Gonzalez, Ferrere Abegados
The Venezuelan judiciary: controlling or collaborating
with arbitration?
by Fernando Pelaez-Pier, Hoet Pelaez Castillo &
Duque
International Arbitration Law Review Vol. 11 Issue 6
2008
contains the following articles:
The ICDR Guidelines for Arbitrators Concerning Exchanges
of Information – a German/American Introduction in light
of international practice
by Martin Gusy and Martin Illmer
Arbitration under the OHADA regime
by Emilia Onyema, SOAS, University of London
(on the Organisation for the Harmonisation of Business Law in
Africa).
CONTRACT AND PROCUREMENT LAW
Challenges to contract award
Henry Brothers (Magherafelt) Ltd v Dept of Education
for Northern Ireland (No. 2) and
McLaughlin & Harvey Ltd v Dept of Finance and
Personnel (No. 2) [2008] CILL 2643 NI QBD
CILL provided short notes on applications for injunctions
to prevent the award of contracts to the tenderer chosen by the
awarding authority in three Northern Ireland cases. Two of the
three have now proceeded to full trial. In the Henry
Brothers case, the contractor succeeded in its case,
having failed to secure a place in a framework agreement for
schools modernisation. The contractor had alleged that the
government had wrongly used the tenderers' fee percentages as
the sole commercial criterion for award. Coghlin J held that
"the original decision to rely on the percentage fees and
bands was based upon an incorrect factual assumption sufficient to
amount to a manifest error". The award had thus been made
unlawfully. In the McLaughlin &
Harvey case, 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 had not been previously disclosed
to the tenderers, nor were they predictable. This was a breach of
the transparency requirements of the Public Contracts Regulations
2006.
Contract award injunction refused
McLaughlin & Harvey Ltd v Dept of Finance and
Personnel [2008] BLR 603 NI QBD
This is the report of the application for an injunction by
the contractors to prevent the award of a framework agreement by a
Government Department. It was reported in CILL. The injunction was
refused on the balance of convenience because damages would be an
adequate remedy and because an injunction would delay the
commencement of public works.
Note that the full trial has now been decided and McLaughlin & Harvey were successful in the challenge to the award: see above in this section.
No duty of care to tenderers
Design Services Ltd v Canada [2008] BLR 571
Supreme Court of Canada
Potential sub-contractors/consultants failed in their
action in the tort of negligence against the government client.
They alleged that the client had awarded a contract unlawfully,
because the tender was non-compliant. The Supreme Court of Canada
held that the client did not owe a duty of care to potential
sub-contractors not to cause them economic loss. The
sub-contractors were not part of a joint venture, as they had
contended, and the creation of a new duty of care between owners
and potential sub-contractors in the tendering process was not
justified.
Scope of collateral warranty
Glasgow Airport Ltd v Kirkman & Bradford
[2008] Con LJ Vol. 24 No. 8 749 Court of Session Inner House
Already reported in BLM, consulting engineers
Kirkman & Bradford sought
unsuccessfully to argue that the collateral warranty they had
executed should not extend to consequential loss. The wording
referred to "liability for costs" and the court held that
this would include consequential loss. Express provision would be
necessary to restrict liability to direct costs and to exclude
consequential loss.
Construction Law Vol. 19 Issue 10 December 2008
contains the following articles:
PFI projects: the good, the bad and the ugly
by Emelita Robbins, Herbert Smith
No easy way to explain some ideas
by Michael Phipps, Thurston Consultants
Bonds and guarantees for security
by Hamish Lal and Emily Busby, Dundas & Wilson
The rise and rise of limitation clauses
by John Warchus, Shadbolt & Co
Olympian task for the NEC
by John Wright, JD Risk Associates
Immigration law and the construction industry
by Edward Goodwyn and Michael Ryley, Pinsent Masons
Construction Newsletter November/ December 2008
contains the following articles:
Projects which fail to reach completion
by Katie Graham, Stephenson Harwood
Getting paid
by Paul Newman, 3 Paper Buildings
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Restitution claim fails
Matthew Lumbers v W Cook Builders Pty Ltd
[2008] BLR 581
The clients, Lumbers, succeeded in their appeal against
the finding of the Supreme Court of South Australia upholding a
claim by W Cook Builders, the sub-contractor employed by W Cook
& Sons, the main contractor. Lumbers had paid all sums
requested to W Cook & Sons, which had gone into liquidation. W
Cook Builders, which had been appointed without the clients'
approval, had received nothing from W Cook & Sons and sought
payment directly from the client, on the basis of restitution for
unjust enrichment. The High Court of Australia would not allow the
contractual framework to be disregarded in deciding on
restitution.
Note the relationship with the decision of the Hong Kong Court of Appeal in Yew Sang Hong v Hong Kong Housing Authority noted in the December 2008 issue.
Disclosure and ethics
The duty to disclose: a clash of law and morality
by Shy Jackson, Pinsent Masons, Construction Law Journal [2008]
Vol. 24 No. 8 p.675
This article is based on a Society of Construction Law
essay and it deals partly with the SCL's work on Ethics in
Construction Law. It is a successor to the author's 'Good
faith in construction law: will it make a difference and is it
worth the trouble?' published in 2007 Con LJ. It deals with
both duties of disclosure at the contract negotiation and formation
stages and in post-contractual disputes. It considers the present
law and exceptions to the general rule, including insurance law and
partnership law. There are comments on the relationship between the
duty to disclose and duties under the standard forms of
contract.
See J Murphy & Sons v Johnston Precast under Keating Chambers Reported Cases on alleged breach of implied term in respect of supply of pipe for water main.
Construction Law Vol. 19 Issue 10 December 2008
contains the following articles:
Really, I would like to litigate
by Paul Newman, 3 Paper Buildings
When is a cost not a cost?
by John Sheils, Shadbolt & Co
GENERAL AND PROFESSIONAL NEGLIGENCE
Real danger needed for nuisance
Birmingham Development Co. Ltd v Tyler [2008]
BLM Vol. 25 No. 10 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.
Party Wall Act award
Rodrigues v Sokal [2008] TCLR 11 TCC
The court held that an award delivered by a third surveyor
appointed by the parties' surveyors was conclusive and so
precluded any further litigation which sought to question its
content. The owners of the neighbouring property sought to maintain
claims that the structural stability of their property was
threatened and nuisance caused by interference with drainage and
other aspects. The judge held that the Act procedure superseded the
common law procedure and could not be circumvented by departing
from the award.
PRACTICE AND PROCEDURE
TCC jurisdictions
Vitpol Building Service v Samen [2008] BLM Vol.
25 No. 10 TCC
The court was asked to decide as a point of principle
whether the TCC 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 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 JCT IFC 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 and would embrace decision of the
point on existence of the contract.
See Gwelhayl v Midas Construction under Keating Chambers Reported Cases on pre-action disclosure and delivery up.
Capping in group litigation
Claimants appearing on the Register of the Corby
Group Litigation v Corby Borough Council [2008] EWHC 619
TCC
The CA's decision on an attempted strike-out in this
group litigation. The claimants alleged that remediation works
carried out for the Council had caused birth defects. This is the
report of a hearing on the fixing of an overall costs cap. The
court rejected the Council's suggestion of a provisional costs
cap and decided that 5% allowance on a cap would be adequate to
deal with the unavoidable uncertainty.
Consent order costs
Richardson Roofing Co. Ltd v Ballast plc [2008]
TCLR 12 TCC
The claimant had made a loss and expense claim against a
main contractor, which had then issued a claim against the
architects (the 4th party). This hearing was a cost
application by the architects against the claimant, following the
making of a consent order. Both parties gave very different
versions of the meaning of the consent order. The judge directed
that the costs judge should construe the consent order in
accordance with his findings on the facts, as to what constituted
costs thrown away.
Sham transactions
Sham transactions
by John Vella, University of Oxford, Lloyds Maritime and
Commercial Law Quarterly 2008 Part 4 November p.488
Noting that courts can look beyond both the form and the
legal substance of a transaction, the author considers the
relevance of intention to enforce and actual enforcement in
searching for the "true" nature of the transaction i.e.
what was intended. He also considers and rejects the notion of
"pretence" as a variant of "sham".
Lloyd's Maritime and Commercial Law Quarterly 2008
Part 4 November
contains the following case-notes:
Enforcing and reinforcing an English judgment
(on Masri v Consolidated
Contractors)
Retention of title and implied authority to pass title
to sub-buyers
(on Fairfax v Capital Bank)
The Hong Kong Fir docks in Australia
(on Koompahtoo v Sanpine)
Unjust enrichment and contract
(on Lumbers v Cook)
The death of proprietary estoppel
(on Yeoman's Row v
Cobbe)
Pre-action Protocol
The Pre-action Protocol for Construction and Engineering
Disputes – satisfactory performance?
by Kevin Barrett, Construction Law Journal 2008 Vol. 24 No. 8
p.687
The author sets the scene with the introduction of the
Protocol, the review process and the amendments in 2007. He adduces
anecdotal evidence as to cost and as to poor practice by some
parties. He advocates systematic research into practice. The main
reported cases are reviewed.
KEATING CHAMBERS REPORTED CASES
Gwelhayl Ltd v Midas Construction Ltd [2008] CILL
2637 TCC
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 a
payment into court of outstanding fees, which gave Bailey a lien
over them.
Jonathan Lee
Kier Regional Ltd v City and General Holborn Ltd
(No. 2) [2008] CILL 2639 TCC
The case, already reported in Adjudication Law Reports,
concerns an attempt by the applicant contractor, to enforce a
judgment against the respondent owner through an interim third
party debt order. Kier obtained an adjudication order against City
& General for loss and expense due to delays in a development.
Kier sought enforcement of the award, which City & General had
resisted, by use of a third party debt order against City &
General's joint venture partner, who had provided assistance in
purchase of the property. The third party resisted the debt order
successfully as there was no actual debt due to the owner. Even if
there had been, the judge would have exercised his discretion to
refuse to grant the order, since an arbitration award between the
parties was pending.
Adam Constable
Air Design (Kent) Ltd v Deerglen (Jersey) Ltd
[2008] EWHC 3047 TCC (LAWTEL)
The claimant sub-contractor succeeded in enforcing the
decision of an adjudicator against the defendant main contractor.
The main contractor had argued that there were disputes under at
least 3 sub-contracts, which did not all have adjudication
provisions, so that the adjudicator had no jurisdiction. The court
held that the adjudicator was entitled to decide the question as to
whether there was more than one contract or one varied by
agreement, which he had done.
Gaynor Chambers
J Murphy & Sons Ltd v Johnston Precast Ltd
[2008] EWHC 3024 TCC (LAWTEL)
The defendant sub-contractor was held not to have breached
any duty to the main contractor when a pipe it had manufactured and
supplied burst. The sub-contractor had not been informed of the
installation method to be used, which was the cause of the failure,
nor was there any breach of a duty to warn the contractor of the
suitability of the pipe for that method of installation.
Nerys Jefford QC
Balfour Beatty Construction (Northern) Ltd v Modus
Corovest (Blackpool) Ltd (2008) EWHC 3029 TCC LAWTEL
The contractor obtained summary judgment to enforce an
adjudicator's decision in its favour against the respondent
owner. The owner failed in attempts to obtain summary judgment for
liquidated damages and to set off that claim against the sums owed
to the contractor under the adjudication decision.
Stephen Furst QC
Piers Stansfield
Benfield Construction Ltd v Trudson (Hatton)
Ltd [2008] CILL 2633 TCC
After two adjudications on delay issues between the
parties, a different adjudicator was appointed to hear a third
adjudication. Benfield failed to obtain enforcement of his decision
on the ground that the disputes were substantially the same and
also on the ground of issue estoppel. The case contains important
consideration of Quietfield v Vascroft (Matthew
Holt and Abdul Jinadu) and HG Construction v
Ashwell (Finola O'Farrell QC and Matthew
Holt)
Piers Stansfield
Birmingham City Council v Paddison Construction
Ltd [2008] BLR 622 and [2008] BLM Vol.25 No.10 TCC
The Council successfully obtained declarations to the
effect that a second adjudication commenced by the contractor
Paddison on a loss and expense claim was on the same dispute as
that decided under the first adjudication between the parties. The
adjudicator would therefore have no jurisdiction in the second
adjudication and would be obliged to resign.
Jessica Stephens
Multiplex Constructions (UK) Ltd v Cleveland Bridge
UK Ltd (No. 6) [2008] EWHC 2220 and 2280 Litigation Letter
Vol. 27 No. 10 December 2008
The Litigation Letter carries extracts from the judgments
in both the substantive case and the costs hearing in the Wembley
Stadium steelwork subcontract dispute. The focus is procedural
rather than related to the liability issues between the parties.
The complex reasoning, relating to the parties' conduct in
relation to making and refusing offers of settlement, is set out in
explaining the costs order made to Multiplex.
Paul Buckingham
Adrian Williamson QC
Gideon Scott Holland
Simon Hargreaves
Alice Sims
Lucy Garrett
This material is prepared for Chambers by our Director of Research and Professional Development, Professor Anthony Lavers (LL.B. M.Phil Ph.D. D.Litt MCI.Arb MRICS Barrister) Visiting Professor of Law, Oxford Brookes University.
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.
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.