ADJUDICATION
Adjudicator's Fees
Linnett v Halliwells LLP [2009] BLM Vol. 26 No.4
Halliwells, the client, as respondent in an adjudication, invited the RICS-nominated adjudicator to withdraw for lack of jurisdiction and denied liability for his fees and expenses. Drawing an analogy with arbitration, the court held that a person appointed as adjudicator is entitled to fees and expenses from the parties and the respondent was liable for the fees, even though it objected to the adjudicator's jurisdiction. If it had refused to participate, the position may have been different.
No Apparent Bias From Mediation Role
Andrew Wallace Ltd v Noon [2009] BLR 158 TCC
The defendant, Noon, sought to resist summary enforcement of the adjudicator's decision in favour of the claimant on the ground that the adjudicator had acted in matters involving the claimant. These included an adjudication and a mediation to which the claimant was a party. The court held that complaints of breach of natural justice will only be upheld in the plainest of cases. In this case, a fair-minded impartial observer would have found no such indication. Relevant circumstances were that the adjudicator had no personal knowledge of either party, nor current relationship with either. He was professionally qualified as an arbitrator and appointed by RIBA, not by the parties.
TeCSA Rules
The TeCSA Adjudication Rules
by Peter Sheridan and Dominic Helps
Shadbolts, Construction Law Journal 2009 Vol. 25 No. 3 p.221
The regular Construction Act Review concentrates on the current
i.e. 2002 edition of the TeCSA Rules; Dominic Helps was involved in
drafting them and both authors are TeCSA members. Noting that some
of the features of the Rules are unusual, the authors consider some
of the content to be statements rather than rules. There are
sections on the powers of TeCSA, the adjudicator's
jurisdiction, and some other provisions. There is a special focus
on the Scots case of Deko Scotland v Edinburugh Royal
JV and extended reference to Shimizu
Europe v LBJ
Fabrications (Adam Constable), and Farebrother Building Services v Frogmore (Paul Darling QC).
See Dalkia Energy & Technical Services v Bell Group under Keating Chambers Reported Cases on jurisdiction to rule on incorporation of standard terms in Part 8 proceedings.
See Bovis Lend Lease v Trustees of the London Clinic under Keating Chambers Reported Cases on crystallisation of a dispute.
See Euro Construction Scaffolding v SLLB Construction under Keating Chambers Reported Cases on adjudicator's jurisdiction to decide on his jurisdiction.
See The Dorchester Hotel v Vivid Interiors under Keating Chambers Reported Cases on timetable for adjudication in complex case.
See OSC Building Services v Interior Dimensions Contracts under Keating Chambers Reported Cases on scope of jurisdiction.
See YCMS v Grabiner under Keating Chambers Reported Cases on exceeding slip rule by recalculations, invalidating adjudicator's decision.
No Stay For CVA
Mead General Building Ltd v Dartmoor Properties
Ltd [2009] CILL 2686 TCC
In enforcement proceedings by Mead, Dartmoor took the point
that it ought not to have to pay because Mead was subject to a
company voluntary arrangement and so would be unable to repay the
money paid should that be the outcome of arbitration. It was held
that a CVA could not prevent judgment being entered. It is a
relevant factor in deciding whether a stay of execution should be
granted but a stay is not automatic just on the existence of a
CVA.
ARBITRATION AND DISPUTE RESOLUTION
Alleged Economic Duress In Mediation; Confidentiality Lost
Farm Assist Ltd (in liquidation) v The Secretary of
State for the Environment, Food and Rural Affairs (No.2)
[2009] EWHC 1102 (TCC)
This case concerns the question whether a mediator can be
called as a witness in court proceedings to give evidence of what
happened during the mediation. The dispute between the parties
concerned an allegation that a settlement was entered into under
economic duress. The settlement was entered into as a result of the
mediation. In a Case Management Conference, the parties agreed by
way of a direction that they could take witness statements from the
mediator and put questions to her about matters which would
otherwise be the subject of privilege. The mediator sought to have
the witness summons served by DEFRA set aside on the basis of the
terms of the mediation agreement, confidentiality and
privilege.
The judge held that the mediator should give evidence. Any without prejudice privilege in the mediation proceedings existed between the parties only and had been waived by the agreed direction to permit witness statements from the mediator.
In respect of confidentiality of the mediation, the judge held that there was a duty of confidentiality of information between the parties and the mediator which could be enforced by the mediator (in this case this confidentiality was expressly provided in the Mediation Agreement, but the judge stated that the court would impose it in any event). However, although the court would generally uphold that confidentiality, it was subject to an exception where the evidence was necessary in the interests of justice. In this case, the allegation of economic duress concerned what was said and done in the mediation and therefore it was in the interests of justice for the mediator to give evidence.
Staying An Action Under Scots Law
Norwest Developments Ltd v Carfin Developments
Ltd [2009] BLR 167 Court of Session Outer House
The court refused the defenders (defendants) a motion to
sist the cause (stay the action) pending reference to the Engineer
for decision under Clause 66. The BLR commentary deals generally
with the relationship between English and Scots construction law,
concluding that in some defined areas they are becoming
indistinguishable. The judgment also considered the need for a
withholding notice under the HGCR Act.
Construction Law Vol. 20 Issue 3 April 2009
contains the following articles:
An opportunity missed?
by Hamish Lal and Emily Busby, Dundas & Wilson (on
HGCR Act reform)
Dragon's feathers
by John Sheils, Shadbolt & Co
ICC International Court Of Arbitration Bulletin 2008 Vol.19 No.2
notes the opening of the Hong Kong branch of the Court's Secretariat. It also contains the following articles:
ICC Arbitration Clause for trust disputes
French court decisions on arbitration 2007-2008
by Bernard Audit, Paris II University
Arbitration in China: practice, legal obstacles and
reforms
by Fan Kur, ICC
International construction contract disputes: second
commentary on ICC awards dealing primarily with FIDIC
contracts
by Christopher Seppälä, White & Case,
Paris
Extracts From ICC Arbitral Awards In International Construction Disputes
Journal Of International Arbitration Vol. 26 No. 1 2009
contains the following articles:
'Investment' and 'Investor' in Energy
Charter Treaty arbitration: uncertain jurisdiction
by Anna Turinou, Federal Court of Appeal, Ottawa
'Back to the future' for investor-state
arbitrations: revising rules in Australia and Japan to meet public
interests
by Luke Nottage and Kate Miles, Sydney Law School
Overcoming immunity-based objections to the recognition
and enforcement in Canada of investor-state awards
by Frederic Bachand, McGill University
Hybrid efficiency in arbitration: waiving potential
conflicts for dual role arbitrators in Med-Arb and Arb-Med
proceedings
by Jacob Rosoff, Stockholm University
Public policy considerations in international
arbitration: costs and other issues: a view from Singapore
by Locknie Hsu, Singapore Management University
Public policy under the Indian Arbitration Act
by Sidharth Sharma, National University of Juridicial
Science, Kolkata
Appellate jurisdiction and equitable estoppel
by Jennifer Kirby, Herbert Smith, Paris
Principles of treaty interpretation in the NAFTA
arbitral award on Canadian Cattlemen
by Alexander Orakhelashvili
Journal of International Arbitration Vol. 26 No. 2 2009
contains the following articles:
European law and investment treaties
by Markus Burgstaller, Lovells, London
Definition of investment in bilateral investment
treaties of South Asian counties and regulatory discretion
by Prabhash Ranjan, National University of Juridicial
Sciences, Kolkata
Setting aside foreign-related arbitral awards under
Chinese Law
by Lanfang Fei, University of Hong Kong
What weight should be given to the annulment of an award
under the lex arbitri? The Austrian and German perspectives
by Gűnther Horvath, Freshfields Bruckhaus
Deringer, Vienna
The enforcement of awards annulled in their place of
origin
The French and US Experience
by Christopher Koch, Geneva
Arbitration in employment relationships in France
by Beatrice Castellane, Paris
International commercial arbitrations in Ukraine:
details do matter
by Yuliya Chernykh, Astapov Lawyers
International Construction Law Review Vol. 26 Part 2 April 2009
contains the following articles:
Disclosure of electronic documents: the issues and
guidelines in international construction arbitration
by Troy Harris, King & Spalding, Atlanta
Enforcement of arbitral awards in the People's
Republic of China
by Corinne Tay
Steps forward in Egyptian Arbitration Law
by Mariam M. El-Awa, El-Awa, Cairo
South Africa: the dinosaur re-emerges –
arbitration clause inseparable
by Patrick Lane SC
See F Ltd v M Ltd under Keating Chambers Reported Cases on dissenting opinions and serious irregularity in an ICC arbitration.
International Arbitration Law Review 2009 Vol 12 Issue 2
contains the following articles:
Who is an arbitrator? A study into the issue of
immunity
by Hong-Lin Yu, University of Stirling
Practical considerations regarding certain aspects of
electronic disclosure in international arbitration
by Joel Greer, White & Case, Tokyo
Lost at sea or a storm in a teacup? Anti-suit
injunctions after Allianz Spa v West Tankers
by Philip Clifford and Oliver Browne, Latham &
Watkins, London
Case comment: Louis Dreyfus SAS v Holding
Tusculum
by Sophie Nappert, 3 Verulam Buildings (on procedural
irregularity under the law of Quebec and Finland)
Arbitration Vol 75 No 2 May 2009
the Journal of the Chartered Institute of Arbitrators
contains the following articles and papers:
Sanctity of foreign awards: recent developments in
India
by Raghar Sharma, National Law University, Jodhpur
US discovery in aid of foreign or international
proceedings: recent developments relating to Title 28 US Code
Section 1782
by Jane Wessel and Peter Eyre, Crowell & Moring
International arbitration: how can it deliver on its
promise?
by Michael Davison and Nowak Lucja, Lovells
Mediation in arbitration in the pursuit of justice
by Lord Woolf
Forget ADR! Think A or D
by Sir Anthony Evans
Past, present and future perspectives of
arbitration
by Karl-Heinz Böckstiegel
Dealing with a multi-tiered dispute resolution
process
by Doug Jones, Clayton Utz
Arbitrating with different legal traditions: civil
law
by Richard Kreindler, Shearman and Sterling, Frankfurt
Arbitration of investment disputes: a Malaysian
perspective
by Dato Cecil Abraham
Specific issues in Islamic dispute resolution
by Mohamed Ismail Mohamed Shariff, Skrine, Kuala
Lumpur
Specific issues in Islamic dispute resolution
by Mark Hoyle, Tanfield Chambers
Is adjudication killing arbitration?
by Rashda Rana, Holding Redlich, Sydney
Maritime disputes: now and in the future
by Bruce Harris, Quadrant Chambers
Adjudication and arbitration: the when and why in
construction disputes
by John Tackaberry QC, 39 Essex Street
The changing political environment for investment
agreements
by Andrew Berkeley
Can good offices assist in relation to resource
nationalism?
by Don McKinnon
The potential role of good offices
by Thomas Mensah
Do established international dispute resolution bodies
have a role?
by David Branson
Resolving disputes between resource-rich and consuming
countries
by Johan Gernandt, Vinge, Stockholm.
CONTRACT AND PROCUREMENT LAW
Public Procurement Law Review 2009 No.1
contains the following articles:
Political institutions and the Government Procurement
Agreement of the WTO
by Dong-Hun Kim, Oakland University
Remedies in public procurement law in Ireland
by Catherine Donnelly, Trinity College Dublin and
Blackstone Chambers
and notes on the following:
Evropaiki Dynamiki – Proigmena Systimata Tilepikinonion Pliforikis kai Tilematikis v Commission, on obligation to state reasons for the rejection of a tender (ECJ)
Commission v Italy on the Teckal exemption for in-house contracts (ECJ)
European Commission decision refusing exemption to Poland's electricity industry under Article 30 of Utilities Directive
The Commission's Interpretative Communication on Institutionalised Public Private Partnerships
Sheridan Millennium v Dept for Social Development on general principles of judicial review and public procurement (NI QB)
Lightways (Contractors) v North Ayrshire Council on award of interim injunctions (Court of Session Outer House)
OGC Consultation on implementation of the Remedies Directive
J&A Developments v Edina, McLaughlin & Harvey v Dept of Finance (No.1 and No.2) and Henry Bros v Dept of Education (No.2)
Public Procurement Law Review 2009 No.2
contains the following articles:
The European Defence Agency Electronic Bulletin Board: A
survey after two years
by Baudouin Heuniackx, University of Nottingham
Competition policy and international trade
liberalisation: essential complements to ensure good performance in
public procurement markets
by Robert Anderson, WTO, and William Kovacic, George
Washington University and notes on the following:
Commission v Italy on incorrect categorisation of a tramway contract as a works concession (ECJ)
Commission v Italy on supply of helicopters for police and fire services (ECJ)
Evropaiki Dynamiki v Commission on obligations to state reasons for rejection of tender (ECJ)
McLaughlin & Harvey v Dept of Finance (No.3)
The Public Contracts and Utilities Contracts (Postal Services Amendments) Regulations 2008
Construction Law Vol. 20 Issue 3 April 2009
contains the following articles:
Dawn of digitisation was worth the wait
by Michael Phipps, Thurston Consultants
(on newly available digitised JCT documents: Construction
Management Appointment 2008
Construction Management Guide 2008
Construction Management Trade Contract 2008)
Clients beware of standard forms
by Ian Yule, Wragge & Co
(on RIBA, ACE and RICS consultancy appointment contracts)
More changes expected from JCT
by Shona Frame, MacRoberts
Partnering for the long term
by David Mosey, Trowers & Hamlins
The waiting game – suspension of
contracts
by Bernard Ang and Hannah Fletcher, Pinsent Masons
Insurance cover on stalled contracts
by John Wright of JC Risk Associates
Remedies In Tender Challenge
Henry Bros v Dept. for Education for Northern
Ireland (No. 3) [2009] BLR 174 NI QB
This is the third reported judgment in the Northern Ireland
case in which the exclusion of the claimant contractors from a
framework agreement was successfully challenged as in breach of the
Public Contracts Regulations 2006. Following McLaughlin
& Harvey v Department of Finance and Personnel,
the court gave judgment on remedies, holding that the framework
agreement would have to be set aside as a result of the breaches;
it was not possible, however, to have the claimant's name added
to the list of successful tenderers. The remedy would be limited to
damages, where contracts had actually been entered into with other
contractors.
Note: It is understood that appeal proceedings are under way.
Construction Law Journal 2009 Vol. 25 No. 3
contains the following articles:
Construction law research: time to get going
by Justin Sweet, University of California
Drafting dispute management clauses: principles of risk
management for commercial contracts
by Peter Phillips, CPR Institute, New York
The views and experiences of specialist contractors on
partnering in the United Kingdom
by Jim Mason, University of the West of England
International Construction Law Review Vol. 26 Part 2 April 2009
contains the following articles:
Turnkey contracting under the ICC Model Contract for
Major Projects: a Middle Eastern perspective
by Marwan Sakr, Hennaoui & Sakr, Beirut
PPPs in Brazil
by Cecilia Vidigal Monteiro de Barros, Xavier Bernardes
& Braganca, Sao Paulo
Laying siege to 'four walls' entire agreements:
the parol evidence rule in construction contracts
by Trevor Thomas, Clayton Utz, Melbourne
Construction Law Vol 20 Issue 4 May 2009
contains the following articles:
Bonds and parent company guarantees
by Scott Duncan and Nicola Milne, Pinsent Masons
New agreement full of potential
by Michael Phipps, Thurston Consultants
(on JCT Pre-Construction Services Agreement 2008)
Protecting the project against insolvency
by Lisa Calderwood, Maxwell Winward
Getting the best out of underwriters
by John Wright, JD Risk Associates
(on design and build PI cover)
See Amaryllis Ltd v HM Treasury under Keating Chambers Reported Cases on time and procedure for challenge under Public Contracts Regulations 2006.
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
No Re-Opening Of Invoices
Furmans Electrical Contractors & Elecref
Ltd [2009] BLM Vol. 26 No. 4 CA
In a dispute over payment of a sub-contractor, the CA held
that paid invoices should not be re-opened, since they had been
paid after checking by site supervisors. The question was what was
a reasonable sum for the sub-contractor to receive on its
outstanding unpaid invoices.
Good Faith And Reasonableness In Australia
John Holland Pty Ltd v Roads and Traffic Authority
of New South Wales [2009] Con LJ Vol. 25 No. 3 229 NSW
CA
Under a highways contract, the client had discretion to
return up to 50% of the security held to the contractor if it was
considered 'just and reasonable'. Following adjudication
decisions in favour of the contractor, the client refused to return
any security. The contractor alleged that the client was in breach
of a duty to act in good faith and reasonably. The court agreed
that there was such a duty but held that it had not been breached
by the client in deciding to hold onto its security. The NSW Court
of Appeal upheld the trial judge's decision.
See AE Yates Trenchless Solutions v Black & Veatch under Keating Chambers Reported Cases on an IChemE Brown Book 'battle of forms'
Execution Following Mercury
The Law Society's guidance on execution of
documents, following the High Court's decision in R (on
application of Mercury Tex Group Ltd) v HMRC was published
on 11 May 2009. The case had cast doubt on the (common) practice of
'virtual signings and closings', developed to avoid
logistical problems in execution and signature of documents. The
practice involves the preparation in advance of signature pages
which are then transferred to the engrossed final form of the
document.
A joint working party of the Law Society Company Law Committee and the City of London Law Society's Company Law and Financial Law Committees prepared the guidance, comprising a non-exhaustive range of options. Advice was obtained from David Thomas QC.
Procurement Lawyers Launch
The Procurement Lawyers Association was launched on 9 March 2009 with the stated aim of brining together "all procurement lawyers, including those in practice and academics, in the UK and elsewhere." The overall aim is to "act as a platform to represent, promote and strengthen procurement law expertise" with the specific objectives the provision of
- an external collective voice e.g. in order to respond to consultation exercises
- a forum for in depth discussion and debate about key procurement law issues
- training and know how.
More details can be obtained from Ruth Davies at Addleshaw Goddard ruth.davies@addleshaw .com.
GENERAL AND PROFESSIONAL NEGLIGENCE
Res ipsa loquitur
George v Eagle Air Services Ltd [2009] Times Law Reports
15 May PC
The Privy Council allowed an appeal by the claimant from a
decision of the Court of Appeal of the Eastern Caribbean, a
relative of a victim killed in an air crash. The case is of use,
although not a construction case, because it confirms in another
type of case, the continued applicability of the doctrine of res
ipsa loquitur, by which the burden of proof in a negligence case
can switch from claimant to defendant, where the facts are such as
to require the defendant to show how harm to the victim had
occurred without negligence by the defendant.
PRACTICE AND PROCEDURE
See Carillion JM v Bath and North East Somerset Council under Keating Chambers Reported Cases on applications to hear preliminary issues and to call a second architect expert for third party proceedings.
See Fitzpatrick Contractors v Tyco (No. 3) under Keating Chambers Reported Cases on criteria for award of indemnity costs.
Construction Law Vol 20 Issue 4 May 2009
contains the following articles:
Early offers can avoid own goals
by Tony Dymond and Estelle Katsimani, Herbert Smith
(on the lessons of the Multiplex
litigation costs)
Severability of adjudicator's decisions
by Lynne McCafferty, 4 Pump Court
Third party debt orders
by Paul Newman, 3 Paper Buildings
Negotiation is a privilege
by John Sheils, Shadbolt
Commercial Litigation Journal No 24 March/April 2009
contains the following articles:
Trade marks: border disputes
by Sara Ludlam, Ludlams
Injunctive relief: good for the money?
by Lorna Brazell, Bird & Bird
Civil procedure: service with a smile
by David di Mambro, Radcliffe Chambers
Competition law: thank you for the music
by Margaret Gray, Brick Court Chambers
(on ECJ ruling in Kanal 5 case)
Auditors: accounting for error
by Liam O'Connell, Kirsty Hick and Laura Jamieson, CMS
Cameron McKenna
Legal Services Act: a catalyst for dispute
by Peter Moore, Denton Wilde Sapte
Not letting the side down
by Ralph Houston
(on client care)
KEATING CHAMBERS REPORTED CASES
AE Yates Trenchless Solutions Ltd v Black Veatch
Ltd [2009] CILL 2669 TCLR 4 TCC
In a 'battle of the forms' case, it was held that the
terms and conditions of the IChemE Brown Book form of sub-contract
(2nd ed 2004) took precedence over the contents of the
terms and conditions of the sub-contractor's quotation, where
the two conflicted. The defendant contractor obtained declarations
to this effect against the claimant sub-contractor.
Marcus Taverner QC
Rosemary Jackson QC
Bovis Lend Lease Ltd v Trustees of the London
Clinc [2009] CILL 2672 TCC
Already reported in BLM, the applicant contractors
succeeded in obtaining enforcement of an adjudicator's decision
in their favour. The respondents argued that there was no
crystallised dispute in respect of a loss and expense claim based
on new expert evidence, so that the adjudicator would not have
jurisdiction. Mr. Justice Akenhead doubted whether the decision in
Carillion Construction v Devonport Royal Dockyard
(Stephen Furst QC and Louise Randall) had survived the CA
decision of AMEC Civil Engineering v Secretary of
State (John Marrin QC, Sarah Hannaford, Simon Hughes)
Finola O'Farrell QC
Euro Construction Scaffolding Ltd v SLLB
Construction Ltd [2009] CILL 2679 TCC
Although the parties had not agreed that the adjudicator
had power to rule on his own jurisdiction, he did have jurisdiction
and therefore could decide the claim referred. His decision based
on the quotation, which constituted the writing for s.107 purposes,
was therefore enforceable.
Jessica Stephens
Jonathan Selby
The Dorchester Hotel Ltd v Vivid Interiors Ltd
[2009] CILL 2676 and [2009] BLR 135 TCC
A referral to adjudication on 19 December comprised a 92
page referral notice and 37 lever-arch files. The defendant client
sought declarations that the timetable for such a volume carried a
serious risk of a breach of natural justice as giving inadequate
time for response by the defendant and decision by the adjudicator.
The declarations were refused, although the judge kept open the
possibility of a challenge to enforcement proceedings if the
anticipated breach of natural justice actually materialised.
Paul Buckingham
Fitzpatrick Contractors Ltd v Tyco Fire &
Integrated Solutions (No. 3) [2009] BLR 144 TCC
This is the costs hearing of the case on the effect of a
quantum cap reported in Con LR and noted in February 2009 issue.
The claimant, Fitzpatrick, had made a Part 36 offer to settle
proceedings with Tyco, which Tyco eventually accepted.
Fitzpatrick failed in its claim for indemnity costs, although it
got interest on its costs and an interim payment. The case is
useful for setting out the criteria for granting indemnity
costs.
Marc Rowlands
David Thomas QC
Jonathan Lee
Carillion JM Ltd v Bath and North East Somerset
Council [2009] TCLR 5 TCC
In a case arising from the Bath Spa project, the claimant
contractor claimed the net sum due on its final account, while the
employer counterclaimed for delay and inadequate remedial works.
The employer issued third party proceedings against its architect.
The contractor applied for a trial of preliminary issues as to
repudiation and the employer applied for leave to call a second
architect expert witness on the ground that its first expert had
already taken a view on the problems encountered in relation to the
contractor and could not take a view on the architect's role.
Both applications were refused. A court should normally order a
trial of preliminary issues by consent and not impose them on an
unwilling defendant. The employer had chosen to bring the case
against the architect and should prove it by reference to its
expert.
Fionnuala McCredie
Richard Coplin
Dalkia Energy & Technical Services Ltd v Bell
Group Ltd [2009] BLM Vol. 26 No. 4 TCC
An adjudicator's decision on whether the defendant
sub-contractor's terms and conditions were validly incorporated
into the sub-contract was part of the dispute referred to him and
thus not normally a matter for the court to interfere with at
enforcement. However, in Part 8 proceedings, the court would have
jurisdiction to decide this matter and held that the standard terms
were so incorporated.
Calum Lamont
OSC Building Services v Interior Dimensions
Contracts Ltd [2009] CILL 2688 TCC
In proceedings by sub-contractor OSC to enforce an
adjudication decision against main contractor IDC, IDC argued that
the dispute related to the final account rather than an interim
payment and that the referral expanded the dispute beyond that set
out in the notice of adjudication. The court rejected these
arguments and held that to raise jurisdictional arguments there
must have been at least a protest in the adjudication.
Lucy Garrett
YCMS Ltd v Grabiner [2009] CILL 2692 TCC
Although correction of an arithmetical error in an
adjudicator's decision would be allowable under the equivalent
of the 'slip rule', where the adjudicator had gone further
and had recalculated sums using a different method (with a further
error), this would invalidate the revised decision. However, the
contractor's application for summary judgment was granted in
respect of the second decision, which was unaffected by the
errors.
Gaynor Chambers
F Ltd v M Ltd [2009] CILL 2681 TCC
F challenged an ICC arbitration award arising from a
dispute over a gas desulphurisation plant under s.68 Arbitration
Act, alleging serious irregularity. The court rejected the argument
that a dissenting opinion had been wrongly ignored; dissenting
opinions are generally irrelevant to a s.68 challenge, unless they
point out, as here, an error by the majority. The majority had not
been wrong in failing to give F Ltd a chance to respond to their
findings on alternative arguments, although it may have been
desirable to notify the parties before finalising the award.
However, there had been serious irregularity in the majority's
failure to give credit to F for £973,000, since there was no
pleaded basis on which they could hold F liable to pay that sum to
M.
Paul Buckingham
Amaryllis Ltd v HM Treasury [2009] EWHC 962
TCC
The defendant client failed in its attempt to strike out
a challenge by the claimant contractor for alleged breach of the
Public Contracts Regulations 2006. The claimant had been
unsuccessful at the first stage tender process on the most valuable
element of furniture supply contracts under a framework agreement
and claimed it had not been informed of weightings of questions nor
given adequate reasons for the outcome. The defendant client failed
in its arguments that the claimant's challenge did not meet the
requirements of the Regulations on the adequacy of the notice and
on time limits. The judgment contains useful guidance on the
meaning of 'promptly'.
Sarah Hannaford QC
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44 (0) 20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.
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