ADJUDICATION
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.
Timing Of Nomination And Certainty
Vision Homes Ltd v Lancsville Construction Ltd
[2009] BLR 525 TCC
Reported in CILL principally on timing of nomination.
Under the HGCR Act Scheme, if the application for nomination of the
adjudicator by the RICS had been made before service of the Notice
of Intention to Refer a Dispute to adjudication, the effect would
be to deprive the adjudicator of jurisdiction to hear the dispute.
The BLR report deals with the full list of issues, including the
certainty of the decision and its consistency with the parties'
agreement and the dispute referred to him and whether it was unfair
for the adjudicator to fail to give the parties notice of his
intended conclusion.
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.
Novation Challenge Fails
Camillin Denny Architects Ltd v Adelaid Jones &
Co Ltd [2009] BLR 606 TCC
Already reported in BLM, the applicant architects sought summary
judgment enforcing an adjudicator's decision in their favour
against the Respondent project manager. 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could not have been replaced by a party which was never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.
No Written Contract
Adonis Construction v O'Keefe Soil
Remediation [2009] CILL 2784 TCC
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.
Subsequent Adjudications
Barr Ltd v Klin Investment UK Ltd [2009] CILL
2787 Court of Session Outer House.
Klin, the client, had engaged Barr, the contractor, for the design
and construction of flats under the Scottish Building Contract
which provided for the resignation of an adjudicator where a
dispute was the same/ substantially the same as under a previous
decision. Following two adjudications, a third was commenced, the
decision on which Klin sought to challenge on enforcement. The
court held that the first two disputes had been on narrow technical
issues, while the third was on the substantive merits of Barr's
entitlement. There were also challenges based on bias, failure to
put to the parties the adjudicator's proposed factual
conclusions, which also failed.
See SG South v King's Head Cirencester under Keating Chambers Reported Cases on fraud by the claimant as a ground for resisting enforcement of an adjudicator's decision.
Nature Of Adjudicator's Decision
Rok Building Ltd v Celtic Composting Systems
Ltd BLM Dec 2009/Jan 2010 TCC
The defendant main contractor failed in its argument that
the adjudicator's decision was merely declaratory of the
position between the parties which could be reflected in future
certification and payment procedures. The court held that the
adjudication decision was by its nature directory, not declaratory,
thus requiring the defendant to make a payment. However, whether a
particular decision is directory or declaratory will depend upon
the words used and the context in which the dispute was referred to
adjudication. See now Rok v Celtic (No. 2) on further enforcement
proceedings.
ARBITRATION AND DISPUTE RESOLUTION
Jurisdiction And Choice Of Law
Agreements on jurisdiction and choice of law: where
next?
by Jonathan Harris, Serle Court, Lloyd's Maritime and
Commercial Law Quarterly [2009] Part 4 537
The focal point of the article is the recent book by
Adrian Briggs 'Agreements on jurisdiction and choice of
law'. Professor Harris largely accepts Professor Briggs'
arguments regarding the separable nature of jurisdiction and choice
of law clauses as dispute resolution provisions. However, he is
more cautious on the 'dual function' of these clauses as
provisions which confer jurisdiction and determine law yet are also
private contractual obligations. He is also cautious on the
relationship between rules of private international law as agreed
by the parties and those applying by default.
International Arbitration Law Review 2009 Vol. 12 Issue
6
contains the following articles:
Anti-suit injunctions in aid of international
arbitration: the American approach
by Carolyn Lamm, Eckhard Hellbeck and Joseph Brubaker,
White & Case, Washington DC
Cross-border insolvency and international commercial
arbitration: characterisation and choice of law issues in light of
Elektrim SA v Vivendi SA and analysis of the European
Insolvency Regulation
by Mark Robertson, New Zealand
The Company as institutional arbitrator in Italian law
– setting an international trend?
by Emanuele Cusa, University of Trento
Funding international arbitrations
by Matthew Amey, The Judge
Multi-party disputes and referral to arbitration under
Chinese law
by Fei Lan Fang, University of Hong Kong
How to protect business secrets in international
commercial arbitration
by Lukas Wyss, Bratschi, Wiederkehr & Buob, Bern
See you in court! Respondent's failure to pay the
advance on arbitration costs
by James Eamon QC and Geoffrey Holub, Gowling Lafleur
Henderson, Calgary
Arbitration Law Monthly Vol. 10
No. 1 December 2009/January 2010
contains the following articles:
Mediation: confidentiality
(on Farm Assist v Secretary of State for DEFRA
(No. 2))
Arbitrators: qualifications
(on Jivraj v Hashwani - alleged
need for religious qualification).
Insolvency and arbitration
(on Syska v Vivendi Universal
– effect of insolvency proceedings).
Challenging an award
(on Konig v Zwiebel –
notification of appeal within time limit).
Serious irregularity
(on Compania Sud-Americana Da Vapores v Nippon
Yusen Kaisha – party not allowed to raise
argument).
Construction Law Vol. 20 Issue 10 December 2009
contains the following articles:
Disputes: how to get the best result
by James Doe, Herbert Smith
The role of dispute boards in dispute avoidance
by Simon Delves, Shadbolts
Journal of International Arbitration Vole 26 No 6
December 2009
contains the following articles:
Issues relevant to the termination of Bilateral
Investment Treaties
by Andrea Carska-Sheppard
Anatomy of the law and practice of interim protective
measures in international investment arbitration
by Regis Bismuth, Université de Paris 1
Panthéon-Sorbonne
Privilege in international arbitration: is it time to
recognise the consensus?
by Craig Tevendale and Ula Cartwright-Finch, Herbert
Smith
Enforcement of arbitral awards in Indochina
by Alastair Henderson, Herbert Smith, Singapore.
Waiver of Sovereign immunity from execution: arbitration
is not enough
by Nicholas Pengelley
Sweden court decisions on arbitration 1999-2008
by Sigvard Jarvin, Jones Day, Paris.
Comment on West Tankers In v RAs Riunione
Adriatica
by Jacob Grierson, Jones Day, Paris.
Comment on Dallah v Pakistan: refusal of
enforcement of an ICC Arbitration award against a
non-signatory
by Jacob Grierson, Jones Day, Paris and Mireille Taok,
Reed Smith, Paris.
Global Arbitration Review 2009 Vole 4 Issue 6
Is a special issue on arbitration in Brazil and contains
the following articles:
Crisis, what crisis? (an overview of the arbitration scene in Brazil).
Brazil as a seat: should companies go there?
notes that 121 cases were handled by Brazil's five
centres 2004-2009, with a year-on-year increase of 53% in
2007-2008.
Brazil's BIT dilemma
on the dispute resolution significance of large scale
foreign direct investment to Brazil.
Wanted – more lusophones reviews the pool of 14 Portuguese-speaking international arbitrators.
Arbitration and Brazilian state entities, at peace
– at last
on use of arbitration clauses by state bodies
Judicial attitudes ... the essentials: Brazilian court decisions.
Enforcing a foreign award in Brazil ... the essentials
CONTRACT AND PROCUREMENT LAW
Construction Law Vol. 20
Issue 10 December 2009
contains the following articles:
A stitch in time
by Michael Phipps, Thurston Consultants
(on changes made by JCT's Revisions 1 and 2)
Something's gone wrong with my contract
by Christopher Nugee QC, Wilberforce Chambers
(on Chartbrook v Persimmon Homes)
Taking the 'P' out of PFI
by Lisa Calderwood, Maxwell Winward
Professional indemnity and fitness for purpose
by John D. Wright, JD Associates
Who owns materials on site?
by Alexandra Price, Mills & Reeve
Under pressure
by Shy Jackson, Pinsent Masons
Construction Newsletter November/ December 2009
contains the following article:
Greater opportunity to challenge contract awards
by Rachel Robinson, Foot Anstey
Public Procurement Law Review 2009 No. 5
contains the following articles:
Forum for review by suppliers in public procurement; an
analysis and assessment of the models in international
instruments
by Zhang Xinglin, University of Nottingham
Control over In-House Providing Organisations
by Roberto Cavallo Perin and Dario Casalini, University of
Turin
The Community Procurement Early Warning System
by Bernard O'Connor
European Court of Justice/Sweden: Selection and Award
Criteria in Swedish Public Procurement Law
JB Leadbitter & Co Ltd v Devon CC
Formalities and time-limits for legal proceedings in
public procurement: Amaryllis Ltd v HM Treasury
(Sarah Hannaford QC)
Public Procurement Law Review
2009 No 6
contains the following articles:
Self-cleaning as a defence to exclusions for misconduct:
an emerging concept in EC Public Procurement law
by Sue Arrowsmith, University of Nottingham, Hans-Joachim
Priess and Pascal Friton, Freshfields Bruckhaus Deringer,
Berlin.
Prohibiting Linked Undertakings from tendering separately in the same procedure
Commission of the European Communities v Hellenic
Republic C-250/07
(on failure to publish prior call for completion and
lateness in response to request for reasons).
Co-operative arrangements between public authorities in the pursuit of a public interest task.
Whether German Sickness Insurance Funds are Contracting Authorities and the categorisation of a Fund's contract for the supply of orthopaedic footwear.
A French provision breaches Remedies Directives 89/665 and 92/13 by jeopardising the effect of the Standstill Period between notification of the award decision and conclusion of the Contract.
Construction Law Vol 21 Issue 1 Jan/February 2009
contains the following articles:
Adjudication the more speedy option
by Michael Draper, Shadbolt.
Invalid instructions a valid issue
by Michael Phipps, Thurston Consultants (on JCT
contracts)
Early involvement trumps partnering
by David Mosey, Trowers & Hamlins.
Health and safety burden grows
by Ashley Viertag, Maxwell Winward.
Guidance on agreements falls short
by Lesley Davey, Reed Smith
(on OGC Guidance on development agreements as public works
contracts)
Is Project Co cash flow safe?
by Emelita Robbins, Herbert Smith
(on pay when certified clauses under the amended HGCR Act)
Is possession nine-tenths of the law?
by Jane Hughes and Amy Bradbury, Collyer Bristow
(on ownership of goods delivered but not paid for)
Consumers gain as insurance law changes
By John D Wright, JD Risk Associates
Adjudication the more speedy option
by Michael Draper, Shadbolt
On-demand guarantees
Enka Insaat VE Sanayi AS v Banco Popolare Dell'
Alto Adige SpA [2009] CILL 2777 Commercial Court
Advance Payment Guarantees and Performance Guarantees were
issued by Italian banks under English law to support sub-contracts
for the design and construction of a retail office building in
Moscow. When the owner terminated the main contract, the main
contractor, Enka, made demands on the guarantees from the banks and
applied for summary judgment when these were not met. The banks
argued that the demands were made fraudulently. However, the court
gave weight to the on-demand nature of the bonds and to the
authority of Edward Owen Engineering v Barclays Bank. The
test to resist summary judgment was for the banks to show a real
prospect of successfully defending Enka's claims based on
fraud. However, an on-demand guarantee was held to be more in the
nature of a promissory note and the claiming party would not be
required to explain or justify the right to be paid by reference to
any actual loss, provided the demands were in the correct form.
Letter Of Intent
Subject To Contract
Whittle Movers Ltd v Hollywood Express Ltd BLM
Dec 2009/Jan 2010 CA
This (non-construction) case concerns a letter of intent
issued after an invitation to tender expressed to be 'subject
to contract'. The letter of intent was followed by an
'interim agreement' but the defendant clients gave notice
to terminate this. The claimant suppliers argued that a long term
contract had resulted, but the Court of Appeal rejected this on the
basis of the 'subject to contract' provision which meant
that no contract arose until a formal document was signed. The
claimant's only remedy, if any, would be in restitution; the
judgment considers the differences between restitution and
contract.
On Demand Guarantees
Rainy Sky SA v Kookmin Bank BLM Dec 2009/Jan
2010 Commercial Court
The defendant bank in this (shipbuilding) case was held to
be obliged to pay the claimants under the terms of an 'advance
payment bond', which was expressed as giving rise to an
obligation to pay on 'first written demand'. The defendant
would not be allowed to defend the claim on the basis of absence of
breach of the underlying contract. The court would not allow the
defendant to refer to the terms of the underlying contract, since
this would be contrary to legal principle and would deprive the
bond of its commercial utility.
GENERAL AND PROFESSIONAL NEGLIGENCE
See Fitzroy Robinson v Mentmore Towers under Keating Chambers Reported Cases on misrepresentation to client as to availability of team leader and amounts payable for services, including lead consultancy.
PRACTICE AND PROCEDURE
No Extension Of Time For Service Of Claim
City & General (Holborn) Ltd v Structure Tone
Ltd [2009] BLR 541 TCC
Already reported in TCLR, the claimant employer had sought
extensions of time for service of the claim forms for a
negligence/nuisance claim against sub-contractors and insurers, at
first on the basis of a relevant pending arbitration. Subsequently,
the TCC case administration unit advised the claimant's
solicitors that the mid-term break would delay the assigned
judge's deliberation on the applications and so service of the
claim forms was delayed. The TCC discharged the order to extend
time and set aside the claim forms. Permission should not have been
given to extend time just because it was more convenient for case
management, nor did a delay in consideration by the assigned judge.
Ex parte orders, like these, should be regarded as vulnerable to
being set aside.
The Commercial Litigation Journal
November/December 2009
contains the following articles:
Injunctions: how far can a freezing order stretch?
by Catharine Orron-Goulder QC, Brick Court Chambers
The Supreme Court: radical reform or cosmetic
change?
by Edward Allen, Dechert
Interest: getting the best return
by Sam Coulthard, Denton Wilde Sapte
(on claims for interest).
Choice of law: the rebirth of Rome
by Alan Gourgey QC and Philip Hinks, 11 Stone
Buildings
Implied terms: defining a reasonable notice period
by Phillip Carnell, CMS Cameron McKenna
Jurisdiction: setting sail once more
by Gautam Bhattacharyya and Victoria Walker, Reed
Smith
(on West Tankers)
Disclosure: enforced exposure
by Melanie Ryan and Jehan-Philippe Wood, Fulbright &
Jaworski
(on Barr v Biffa Waste)
The Law Quarterly Review Vol. 126
January 2010
contains the following articles:
Unjust enrichment and the assessment of quantum meruit
awards
by Andrew Lodder, Magdalen College, Oxford
See Austria v Tokio Marine Europe Insurance under Keating Chambers Reported Cases on barring of new case arising from amendment of particulars of claim.
Requirements And Purpose Of Pleadings
K/S Lincoln v CB Richard Ellis Hotels Ltd
[2009] BLR 591 TCC
In a negligent valuation claim regarding a portfolio of
hotel properties, the claimants applied to strike out part of the
defence, which sought to refer to illegal tax evasion without
pleading it, but reserving the right to raise it. The court
rejected the idea of a 'half-way house' between making a
positive averment and not making one, which would not conform with
the CPR. It was necessary to make a proportionate order in relation
to costs, so the claimants would be given 14 days to decide whether
to pursue the part of their claim which the defence wished to
challenge as disclosing illegality. If they did, the defence could
raise illegality. If they did not, they could seek an interim costs
order against the defendant.
Pre-Contract Evidence In Negotiation
Chartbrook Ltd v Persimmon Homes Ltd [2009] BLR
551 House of Lords
Already reported in ConLR, this is a case on property
development and concerned the agreement by which Persimmon would
develop Chartbrooks' site, paying Chartbrook a stated price.
This price became the subject of a dispute between the parties and
the issue for the House of Lords was the correct interpretation of
the contract provisions. Lord Hoffman's judgment and a number
of (obiter) comments attracted much attention the role of evidence
of pre-contract negotiations. The basic rule that such evidence
should be excluded was upheld, but Lord Hoffman emphasises both
limitations and exceptions to the rule. Pre-contract evidence could
be used to give contextual background. It could also be used to
support a claim for rectification or estoppel.
See Tai Ping Carpets v Arora Heathrow TS under Keating Chambers Reported Cases on the criteria for transfer of a case from the Birmingham District Registry to the TCC in London or Birmingham.
The 'Loser Pays' Principle In Costs
Dawes v Treasure and Son Ltd [2009] CILL
2781
Following reported litigation on signature of an
adjudicator's decision, the parties contested the award on
costs of the arbitrator. The contractor, Treasure, the successful
party in the adjudication, unusually, had commenced arbitration
under the CIMAR provision in the contract. Treasure had to pay the
client, Dawes £618,000, but the court upheld the
arbitration's decision on costs, based on the overall position
between the parties, on which Treasure was to be regarded as the
successful party. Under the CIMNA Rules, where a claim and
counterclaim are closely connected, the costs of each can be dealt
with together.
The Commercial Litigation Journal Jan/Feb 2010 No.
29
contains the following articles:
Burning your books by Peter Hibbert, College of Law (on pre-action destruction of evidence)
Ill-gotten gains by Jonathan Thorpe and Rob Morris, CMS Cameron McKenna (on the illegality defence in civil claims)
Ordering online by Nyree Applegarth, Higgs & Sons
The best-kept secret in commercial litigation by Richard Aird, Murray Stable (on forum-dipping into Scotland)
Meaning is use by Andrew Francis and Matthew Morrison, Serle Court (on the relevance of context in contract interpretation)
Reform and repair by Jan Walaski and Jae Park, Venner Shipley (on the Unified Patent Litigation System)
In the money by James Corbett QC and Phillip Marshall QC, Serle Court
Wake-up call by Isabelle Rahman, Dechert (on EC intervention in the pharmaceutical sector)
KEATING CHAMBERS REPORTED CASES
Workspace Management Ltd v YJL London Ltd
[2009] BLR 497 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
expressly. 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 the claimant from the
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
Fitzroy Robinson Ltd v Mentmore Towers [2009]
BLR 505 TCC
Already reported in Con LR, the claimant architects sued
for unpaid fees on work carried out for the defendant clients. The
clients established that the architects had knowingly
misrepresented the availability of a named individual to act as
team leader. The court also found that the amounts payable could be
adjusted to reflect work actually done by the architects, rather
than being simply the contractual sums. There is extensive
discussion of the proper role of a lead consultant. There was no
finding of negligent leadership by the architects. The court
criticised the defendants' use of its expert, by which his
preparation was hampered by restrictions imposed on him and also
the claimant's witness.
Paul Darling QC
Marc Rowlands
Seele Austria GmBH v Tokio Marine Europe Insurance
Ltd [2009] BLR 481
In the long-running litigation concerning recover-ability
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, within its judicial
discretion, allow the amended particulars of claim to be used to
plead a new case.
Adrian Williamson QC
North Midland Construction Plc v AE&E Lentjes UK
Ltd [2009] BLR 574 TCC
Already reported in CILL, 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
Tai Ping Carpets UK Ltd v Arora Heathrow T5 Ltd
[2009] BLR 601 TCC
The Technology and Construction Court had to consider the
criteria for the transfer of a case from Birmingham District
Registry to TCC. The defendant client sought transfer to the London
TCC, the claimant supplier wished for transfer to the Birmingham
TCC. The case was a £620,000 claim for supply of carpets to a
Terminal 5 hotel. The court found the relevant factors on balance
of convenience of venues to be neutral, so the proceedings would
continue in Birmingham, as that was where they had been
started.
Piers Stansfield
SG South Ltd v King's Head Cirencester LLP BLM
Dec 2009/Jan 2010 TCC
The court held that, in principle, fraud or deceit on
the part of a party seeking to enforce an adjudicator's
decision can be used to resist enforcement. However, a distinction
would be drawn between fraud impacting upon the subject matter of
the decision and fraud independent of it. On the facts, the judge
was not satisfied that the defendants could prove fraud by the
claimant and he refused a stay of execution of his judgment for the
claimant.
Thomas Lazur
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.
RECENT SEMINARS AUTUMN 2009 / WINTER 2010
Introduction to International Arbitration
London: 15 February 2010
Justin Mort
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Dubai: 7 February 2010
Chairmen: John Marrin QC, Robert Gaitskell QC
Legal principles
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Preparing the claim
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Preparing a defence
Justin Mort
Extensions of time and liquidated damages
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Claims and remedies: recent cases
London: 3 February 2010
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Awarding Public Contracts Lawfully and Skilfully with
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Belfast: 29 January 2010
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Latest Issues in Construction and Property
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Milton Keynes: 28 January 2010
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Construction Disputes in the Middle East
London: 20 January 2010
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London: 8 December 2009
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How consultants bring claims against other people
London, 26 November 2009
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Insolvency in the construction industry – what
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London: 19 November 2009
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NEC Standard Form of Contract
London: 18 November 2009
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The Role of the Expert Witness
Glasgow: 17 November 2009
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The New Defence Procurement Directive
London: 11 November 2009
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Professional Negligence Annual Seminar – Third
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London: 10 November 2009
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Winchester: 4 November 2009
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