ADJUDICATION
See William Hare v Shepherd Construction under Keating Chambers Reported Cases on the insolvency exception to the pay when paid provisions of the HGCR Act.
Two contracts argument fails
Supablast (Nationwide) Ltd v Story Rail Ltd
[2010] BLR 211 TCC
Main contractor Story sought to challenge the jurisdiction
of an adjudicator who had decided in favour of sub-contractor
Supablast. Story argued that there were separate subcontracts for
different elements of the works and that no adjudicator could
preside over more than one adjudication. The court rejected this on
the facts, holding that there was only one subcontract and/or the
parties had behaved as if there was only one.
See Speymill Contracts v Baskind under Keating Chambers Reported Cases on the fraud defence to enforcement.
See SG South v Swan Yard (Cirencester) under Keating Chambers Reported Cases on 'statutory estoppel' in s.107(5) HGCR Act.
Construction Law Vol. 21 Issue 5 June 2010
contains the following articles:
Adjudication and liquidation
by Andrew Jones, HBJ Gateley Wareing
Injuncting adjudication
by Peter Stockill and Michael Taylor, 4 Pump Court
See Anglo Swiss Holdings v Packman under Keating Chambers Reported Cases on criteria for injunction to restrain adjudication.
See Yuanda (UK) v WW Gear under Keating Chambers Reported Cases on disapproval of Tolent clauses under s.108 HGCR Act.
Failure to consider defence condemned
Pilon v Breyer Group plc [2010] BLM Vole 27 No
5 TCC
The adjudicator's decision not to consider a defence
relied upon by the defendant constituted a material breach of the
rules of natural justice, rendering the adjudicator's decision
unenforceable. The adjudicator had decided that he had no
jurisdiction to consider the set-off defence raised by Breyer
because related to elements of the work which were not in dispute.
The case is notable for analayis of Quartzelec v
Honeywell Control Systems. (Fionnuala McCredie)
ARBITRATION AND DISPUTE RESOLUTION
Arbitration Vol. 76 No. 2 May 2010
contains the following articles:
Amendments to the Singapore International Arbitration
Act
by Leng Sun Chan, Ang & Partners, Singapore
The role of the doctrines of champerty and maintenance
in arbitration
by Jern-Fei Ng, Maxwell Chambers, Singapore
The court's powers to intervene in arbitration
matters in England and Wales, with particular reference to the
court's inherent and residual discretion
by Daniel Brawn, Kuit Steinart Levy, Manchester
The right of appeal and judicial scrutiny of arbitral
decisions and awards
by the Hon. Justice Edward Torgbor, Stellenbosch
University
'Litigation triage': the early assessment of
civil and commercial claims and disputes
by Jonathan Haydn-Williams, Goodman Derrick
Jackson endorses the benefits of mediation in the legal
process in England and Wales
by Ann Brady, Rougemont Chambers, Exeter
Mediation: a scheme in operation at the Mayor's and
City of London Court
by Anthony Connerty, Lamb Chambers
Settlements in international arbitration: comments on
the CEDR Settlement Rules
by Masood Ahmed, Birmingham City University
Effect of party insolvency on arbitration proceedings:
pause for thought in testing times
by Jonathan Sutcliffe and James Rogers, Fulbright &
Jaworski
Arbitration Law Monthly Vol. 10 No 6 June/July
2010
contains the following articles
Arbitral procedure
Car & Car Pte Ltd v Volkswagen AG in the
Singapore High Court on the SIAC Rules.
Jurisdiction
Republic of Serbia v Image Sat
International
on where jurisdiction is not justifiable in the English courts.
Agreement to arbitrate
Capes (Hatherden) v Western Arable Services
on whether an arbitration clause was incorporated by a course of
dealing.
Commencing an arbitration
Lantic Sugar v Boffin Investments
on restriction on the Court's powers to extend limitation
periods for commencement of arbitration.
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Construction Law Vol. 21 Issue 4 May 2010
contains the following articles:
Suspension might not be repudiation
by Vijay Bange, Trowers & Hamlins
(on Mayhaven Healthcare v Bothma)
(Ian Pennicott and Krista Lee)
A right to repair
by Stuart Davey, Pinsent Masons
Forewarned is forearmed
by Martin Baldock, Stroz Friedberg
(on use of electronic evidence in litigation)
Enough already!
by David Owens, Clyde & Co
(on enforcement of adjudication, noting Amec Group Ltd
v Thames Water Utilities Ltd)
(Simon Hargreaves QC and Lucy
Garrett)
CONTRACT AND PROCUREMENT LAW
Construction Law Vol. 21 Issue 4 May 2010
contains the following articles:
Forms need checking against contract wording
by Michael Phipps, Thurston Consultants
Lords rule on letters of intent
by Chris Kirby-Turner, Thomson Snell & Passmore (on
Chartbrook v Persimmon implications)
Avoid recipe for disaster
by Shona Frame, MacRoberts
(on precedence of contract terms)
Insurance cover for delayed projects
by John Wright, JD Risk Associates
Construction Law Vol. 21 Issue 5 June 2010
contains the following articles:
Definitions need to be brought together
by Michael Phipps, Thurston Consultants
(on JCT 2009 Guide, Appendix B)
FIDIC subcontract faces a test
by Tia Starey, Clyde & Co
Insurance and environmental liability
by John Wright, JD Risk Associates
Notices – a trap for the unwary
by Alexander Grant, Pinsent Masons
New remedies for public procurement
by Sophie Charveron, K&L Gates
Letter of intent and formation
RTS Flexible Systems Ltd v Molkerei Alois
Müller GmbH & Co [2010] BLM Vol. 27 No. 4 Supreme
Court
The defendant dairy manufacturer wished to retain the
claimant to supply services for automation of processes and
equipment. After providing some quotations, the claimant was
awarded the job and the defendant issued a letter of intent,
confirming its wish to proceed with the project 'as set out in
the offer', subject to finalisation of price and completion
date and using an amended version of the MF/1 form of contract, to
be executed within four weeks. Work started as negotiations
proceeded and the letter of intent was extended for three months. A
final draft contract was produced but never signed, leading the
claimant to commence proceedings. The TCC had held that, after the
lapse of the letter of intent, the parties had reached full
agreement on the obligations relating to the work. The CA held that
MF/1 could not become operative until signed and thus no contract
had been concluded after the letter of intent lapsed. The Supreme
Court, allowing the appeal from the CA, held that the parties were
working under a contract, but not on the same basis as the TCC had
thought.
GENERAL AND PROFESSIONAL NEGLIGENCE
Occupiers Liability Act appeal fails
Mann v Northern Electric Distribution Ltd
[2010] EWCA Civ 141 All ER (D)
15 year old claimant failed on appeal in proceedings under
Occupiers Liability Act 1984. He had been seriously injured in an
electricity substation, having climbed over six metre walls and
railings with spiked wire. The CA upheld the trial judge's view
that his means of access was not foreseeable and the defendant
occupier was not in breach of its duty to him as a foreseeable
trespasser.
Solicitors' negligence
Tom Hoskins plc v EMW Law [2010] EWHC 478 Ch.
Div NLJ 23 April 584
Although a solicitor is not normally required to give
general commercial advice to a client, here it was within the
solicitors' retainer to advise assignees of a chain of pubs of
the need to obtain the landlords' consent and what might be
required, even though it was the clients who bore the
responsibility of seeking the consent. The claim in negligence for
this and for delay was held to be made out.
PRACTICE AND PROCEDURE
Issue estoppel
Hi-Lite Electrical Ltd v Wolseley UK Ltd [2010]
BLR 225 TCC
Following a fire at the owner's premises, the owner
sued contractor Hi-Lite, who had fitted a pump provided by the
supplier Wolseley. Judgment was given against Hi-Lite, including
the finding that the pump was the cause of the incident. Wolseley
had not been involved to that point but Hi-Lite now sought
contribution from it. Wolseley disputed the cause of the fire,
which Hi-Lite claimed was an abuse of process since it had already
been decided by a judge in proceedings where Wolseley could have
applied to participate. The Court held that it was not abusive to
'keep their powder dry' while others litigated and it would
not be unfair to allow Wolseley to dispute the first findings of
the judge.
Frustration argument fails
Gold Group Properties Ltd v BDW Trading Ltd
[2010] BLR 235 and BLM Vol. 27 No. 4 TCC
Barratt, the developer, argued that its development
agreement with the site owner, Gold, was frustrated by the failure
of the sale prices of the units on the project to meet the schedule
of minimum prices. This was caused by the economic and property
recession and the court held that this was not a frustrating event,
reviewing the frustration case law. Neither were the minimum prices
a condition precedent to Barratt undertaking the development.
Proprietary Estoppel
Henry v Henry [2010] BLM Vol. 27 No 5 Privy
Council
In this appeal from the Court of Appeal of the Eastern
Caribbean, the Privy Council gave judgment for the appellant. A
landowner had died without fulfilling her promise to leave a share
of land to the claimant in return for caring for her. The Privy
Council found that the trial judge had been wrong to reject the
claim for proprietary estoppel on the ground of absence of
detriment. The appellant had foregone the opportunity of a better
life elsewhere, which was capable of constituting detriment. The
Privy Council applied the doctrine of proportionality in weighing
promise against benefit.
Remoteness of damage in contract
Sylvia Shipping Co. Ltd v Progress Bulk Carriers
Ltd [2010] BLM Vol 27 No 5 Commercial Court.
The House of Lords' decision in Transfield
Shipping v Mercator Shipping was considered in this
case and the 'orthodox approach' to remoteness under
Hadley v Baxendale reasserted.
Transfield had decided that the broader ground, based on
'assumption of responsibility' might be used, but the
Commercial Court said that this would be in the minority of cases
where the orthodox approach would lead to "an unquantifiable,
unpredictable, uncontrollable or disproportionate liability or
where there is clear evidence that such a liability would be
contrary to market understanding and expectation".
The case concerned a time charter of a ship which had not been ready for sub-charter, use due to breach of maintenance obligations by the owners.
Uncertainty and assessment of damages
Durham Tees Valley Airport v BMI Baby Ltd
[2010] BLM Vol 27 No 5 CA
The Court of Appeal rejected the defendant airline's
contention that its contract with the airport was void for
uncertainty because it did not specify the number of flights
agreed. The CA emphasised the reluctance of modern courts to find a
contract void for uncertainty. The court also rejected the
defendant's argument that in assessing damages it should be
assumed that the defendant would have performed the contract in the
way most profitable to itself. The defendant had a single
obligation to perform, albeit with some measure of discretion as to
manner.
Construction Law Vol. 21 Issue 5 June 2010
contains the following article:
Keeping costs down
by Alastair Young, Gateley Wareing
(on litigation costs)
Misrepresentation and entire agreement
BSkyB Ltd v HP Enterprise Services UK Ltd
[2010] BLR 267 and [2010] CILL 2841 TCC
The CILL focuses on misrepresentation aspects of the
judgment on BskyB's claim regarding its commissioning of a
customer relationship management system. The BLR Report is
complete. One of the key aspects of the case was the scope of the
entire agreement clause. Although it excluded any alleged
collateral warranty or side agreement, it did not exclude the
bringing of an action for negligent misrepresentation. Such a
result could have been achieved but only by using clearer words.
There are also important findings on causation, mitigation and
quantum.
KEATING CHAMBERS REPORTED CASES
Speymill Contracts Ltd v Baskind [2010] BLR 257
CA
The respondent defendant, the owner, alleged that certain
files, including withholding notices, had been stolen by the
claimant contractor, the appellant. The CA, in granting summary
judgment, with stay of execution, considered the fraud defence and
the heavy burden on a defendant alleging it to support it with
clear and unambiguous evidence. The CA approved SG
South v King's Head Cirencester (Thomas Lazur)
Marcus Taverner QC
Jonathan Selby
William Hare Ltd v Shepherd Construction Ltd
[2010] BLM Vol. 27 No. 4 CA
The Court of Appeal upheld the TCC in deciding that a pay
when paid clause could not be brought within the insolvency
exception, because the contract had not been updated to reflect the
change in the statutory definition of insolvency. The CA was clear
that the onus was upon the party seeking to rely on a clause of
this kind to get it right.
Stephen Furst QC
Vector Investments v JD Williams [2010] BLR 195
TCC
In a professional negligence case, the client, Vector, had
been awarded £750,000 damages against the defendant architect
Williams out of the £6 million claimed. In the costs hearing,
both parties claimed success. The court awarded Vector its costs up
until the defendant's offer of settlement was made and 50% from
there until the eventual Tomlin Order. The claimant was obliged to
give £30,000 credit for costs wasted by the defendant as a
result of the claimant's conduct on disclosure.
Paul Darling QC
Thomas Lazur
SG South Ltd v Swan Yard (Cirencester) Ltd
[2010] BLM Vol. 27 No. 4 TCC
Notwithstanding that the contract in question was not in
writing, the court upheld the adjudicator's jurisdiction on the
ground that the defendants had expressly stated in writing that
they did not object to his jurisdiction. The effect of s.107(5) was
to act as a kind of statutory estoppel, preventing the deployment
of this defence.
Thomas Lazur
Anglo Swiss Holdings v Packman Lucas Ltd [2010]
CILL 2846 TCC
Part of the extensive Mentmore litigation, this element
concerned an application for an injunction to restrain
adjudication. The court considered the criteria for granting an
injunction to restrain adjudication and found them similar in
principle to those for restraining litigation as unreasonable or
oppressive. On the facts, consultant engineers Packman would be
granted an injunction to restrain adjudication. The clients had not
honoured the first adjudication awards.
Marc Rowlands
Yuanda (UK) Ltd and WW Gear Construction
Ltd [2010] BLM Vol. 27 No.5 and [2010] CILL
2849 TCC
The adjudication provisions under a trade contract on a
London hotel project were an amended version of the TeCSA Rules,
making Yuanda liable for all costs in the adjudication whatever the
outcome. This was held not to be unreasonable for UCTA purposes nor
void for uncertainty, but it did fail to comply with the
requirements of s.108 HGCR Act and so would be replaced by the
Scheme. Bridgway v Tolent (Tolent
clauses) disapproved. On the Late Payment of Commercial Debts
(Interest) Act, 0.5% above base would not constitute a substantial
remedy, so it would be replaced by 8% above the reference
rate.
Gideon Scott-Holland
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pcooklin@keatingchambers.com
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