ADJUDICATION
Construction Law Journal 2009 Vol. 25 No. 5
contains the following articles:
Weather warning: adjudication hot-house meets depression
Precipitation expected
by Alexander Hickey, 4 Pump Court
(on recent adjudication enforcement decisions featuring
Cantillon v Urvasco, Quartzelec v
Honeywell (Fionnuala McCredie),
CJP Builders v William Verry, Air Design v
Deerglen (Gaynor Chambers),
Euro Construction Scaffolding v SLLB
(Jessica Stephens), Vitpol Building
Services v Samen, Walter Lilly v DMW, Dorchester Hotel v Vivid
Interiors (Paul Buckingham), Kier
Regional v City and General (Adam
Constable)
Severability of adjudicators' decisions
revisited
by Peter Sheridan and Dominic Helps, Shadbolt
attacking the view of Sean Brannigan QC on Cantillon v
Urvasco citing Bovis Lend Lease v London
Clinic (Finola O'Farrell QC) and
AMEC v Whitefriars (David Thomas
QC, Stephen Furst QC, Jane Lemon).
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.
See Primus Build v Pompey Centre under Keating Chambers Reported Cases on service of Notice and excess of jurisdiction by adjudicator.
See The Dorchester Hotel v Vivid Interiors under Keating Chambers Reported Cases on timetable for adjudication in complex case.
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.
Oral Contract And Interest
Allen Wilson Joinery Ltd v Privetgrange Construction
Ltd [2009] 123 Con LR 1 TCC
Already reported in TCLR, a sub-contractor failed to
obtain summary judgment to enforce an adjudicator's decision,
since the court could not summarily resolve the issues as to
whether there was an oral agreement for the design which would not
comply with s.107 HGCR Act. Following Carillion
Construction v Devonport Royal Dockyard
(Stephen Furst QC and Louise Randall), the
adjudicator had no power to award interest.
Construction Law Vol. 20 Issue 6 July 2009
contains the following articles:
Finances no ground for stay of execution
by Emmanuel Ninos and William Cooper, Shadbolt
Preparing for a nuclear fallout?
by Emelita Robbins, Herbert Smith
(on the HGCR Act nuclear exemption)
The error of omission
by John Sheils, Shadbolt
See Quartzelec v Honeywell Control Systems under Keating Reported Chambers Cases on an adjudicator's failure to take into account a defence raised.
Adjudicator's Fees And Acceptance
Linnett v Halliwells LLP [2009] BLR 312 and 123
Con LR 104 TCC
Halliwells, the client 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. Its silence and letter had
not been accepted, but its request to the adjudicator to make a
non-binding decision gave rise to a contract.
See YCMS v Grabiner under Keating Chambers Reported Cases on exceeding slip rule by recalculation, invalidating adjudicator's decision.
No Written Contract
Adonis Construction v O'Keefe Soil Remediation [2009] EWHC 2047 TCC LAWTEL
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.
Summary Judgment Resisted
Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2108
TCC LAWTEL
Multifit sought summary judgment to enforce an
adjudicator's award in its favour. Estor successfully submitted
that it was arguable that there was no contract between Estor and
Multifit, on the basis that Estor was owned and run by an
individual and that Multifit had dealt with that person. If this
was correct, the adjudicator would have no jurisdiction, so summary
judgment should not be granted.
Novation Challenge Fails
Camillin Denny Architects Ltd v Adelaide Jones &
Co. Ltd [2009] EWHC 2110 TCC LAWTEL
The applicant architects sought summary judgment enforcing
an adjudicator's decision in their favour against the
respondent project managers. 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.
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.
ARBITRATION AND DISPUTE RESOLUTION
Arbitration Vol. 75 No. 3 August 2009
contains the following articles:
Islamic finance: potential implications for dispute
resolution
by Aisha Nader, Queen Mary, London
The influence of Sharia norms of dispute settlement and
international law: the International Court of Justice, room for
accommodation?
by Ayla Karmali, Salam Advocates, Dubai
The anti-suit injunction: historical overview
by David Altaras, 36 Bedford Row
After West Tankers – rise of the
'foreign torpedo'?
by Stuart Dutson, Eversheds, London and Mark Howarth,
Eversheds, Leeds
Spare the rod and spoil the party: how procedurally
robust should a tribunal be?
by Mark Beeley and Sarah Stockley, Vinson & Elkins,
London
Emergent international attitudes towards bribery,
corruption and money laundering
by Kenneth Beale, Wilmer Cutler, London and Paolo
Esposito, Studio Legale Esposito, Naples
Rent review arbitrators: legal challenges to awards and
how to avoid them
by Stephen Bickford Smith, Landmark Chambers
Enforcement of foreign awards in China: judicial
attitudes
by Fei Lan Fang, Three Gorges University, Yichang
Mediation developments in civil and commercial matters
within the European Union
by Ann Brady, Rougemont Chambers, Exeter
The US model for international class action
arbitration
by Grant Hannessian and Christopher Chinn, Baker &
McKenzie, New York
Incorporation by reference of the arbitration clause:
recent Lebanese practice in a comparative context
by Marwan Sakr, Hennaoui & Sakr
Global Arbitration Review 2009 Vol. 4 Issue 3
contains the following article:
The essentials of stabilisation clauses
by David Moss, Lovells
CONTRACT AND PROCUREMENT LAW
Letter Of Intent And Contract Formation
RTS Flexible Systems Ltd v Molkerei Alois Muller
GmbH & Co [2009] 123 Con LR 130 CA
This is the report of the appeal from the TCC's decision and was already reported in BLR. 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 appeal was allowed.
Construction Law Vol. 20 Issue 6 July 2009
contains the following articles:
What is reasonable?
by Michael Phipps, Thurston Consultants (on JCT
Pre-Construction Services Agreement 2008)
Demystifying the NEC3 Contract
by Ron Plascow, Mills & Reeve
Slaying some liquidated damages myths
by Hamish Lal, Dundas & Wilson
Shared risk and reward the key to partnering
by Martin Hirst, Bovis Lend Lease
Indemnity limits – what do they really
mean?
by John D. Wright, JD Associates
Construction Law Vol. 20 Issue 7 August/September 2009
contains the following articles:
Always check for meaning
by Michael Phipps, Thurston Consultants
(on JCT Project Bank Accounts and Pre-Construction Services
Agreement)
Is completion practically understood?
by Hamish Lal, Dundas & Wilson
(on meaning of practical completion)
FIDIC goes for Gold
by Khalid Ramzan, Pinsent Masons
(on DBO Contract 2008)
Defects and damage – extent of insurance
cover
by John D. Wright, JD Risk Associates
NHS Lift and EU procurement rules
by Sarah Pengelly, MacRoberts
Public Contracts Regulations Breach
McLaughlin & Harvey Ltd v Department of Finance
and Personnel
[2009] 122 Con LR 157 (No. 1) N. Ireland QBD
169
(No. 2)
194
(No. 3)
Contractors McLaughlin & Harvey were aggrieved at not
being included in a Northern Ireland Government framework
agreement. They sought to challenge the decision. In (No. 1) they
unsuccessfully applied for an injunction to prevent the award of
the agreement; the court refused the injunction on the balance of
convenience because damages would be an adequate remedy and because
an injunction would delay the commencement of public works. In the
main trial (No. 2), it was noted that 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 were not disclosed
to the tenderers, nor were they predictable. This was a breach of
the transparency requirements of the Public Contracts Regulations
2006. In (No. 3) reported in BLR and noted in May 2009 issue, 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 to add the claimant's name to the list of
successful tenderers. Damages would be available where contracts
had been entered into.
EU Defence Procurement
On August 20 2009 the EU Official Journal carried the text of Directive 2009/81/EC on the coordination of procedures for the award of works contracts, supply contracts and service contracts by contracting authorities/entities in the fields of defence and security. Although the Directive seeks to promote transparency and free competition as in other directives, there is recognition of special considerations applicable to defence procurement.
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Conditions Precedent
W. Hing Construction Co. Ltd v Boost Investment Ltd
[2009] BLR 339 Hong Kong Court
In a project for renovation of a shopping centre under the Hong
Kong General Conditions of Contract, the claimant contractor sought
an extension of time. The court held that it had satisfied the
condition precedent for grant of extension of time, which the
defendant employer contested, by identifying and reporting the
cause of the delay. The employer's architect's letter was
not a valid extension of time. The architect had not certified that
the contractor ought reasonably to have completed by the specified
or extended Date for Completion. By failing to do so, the architect
caused the employer to lose its right to claim liquidated damages.
The court had no power to issue such a certificate to make good its
deficiency.
Fixed Price Contract
SW1 Ltd v P&I Data Services Ltd [2009]
Con LJ Vol. 25 No. 5 CA
Already reported in BLR, the Court of Appeal dismissed an
appeal by the defendant main contractor against a finding by the
judge that it had entered into a fixed price sub-contract with the
claimant sub-contractor. The claimant having successfully completed
the work, the main contractor could not seek any reduction in
price. The main contractor argued unsuccessfully that the
sub-contract was a unit-priced contract. As it was a fixed-price
contract, even a variation would not automatically vary the price:
certainly, simply removing part of the works would not do
so.
Construction Law Journal 2009 Vol. 25 No. 5
contains the following articles:
Protection against contractor insolvency by bonds
by Jane Jenkins and Pauline Page, Freshfields, London
Minor defects in construction projects: a comparative
approach
by Eric Franco Regjo, King's College London
Stage Payments
Cheltan Pty Ltd v Stanton [2009] 122 Con LR 110
District Court NSW
This Australian case, decided in 2001, is reported on the
issue of accrual of right to stage payments. Approving the view of
Hudson, the court held that effective and satisfactory completion
of the required stage was required before any entitlement to apply
for stage payment arose. Failure to install six windows would not
be a minor defect/omission for these purposes and no entitlement to
apply for payment arose.
GENERAL AND PROFESSIONAL NEGLIGENCE
Damages In Nuisance
Dobson v Thames Water Utilities Ltd [2009] BLR
287 and [2009] 122 Con LR 32 CA
The first instance decision in the TCC reported in BLR
confirmed that claims of odours and insects arising from a sewage
works could only be brought under the Water Industry Act and not in
nuisance nor under the Human Rights Act, following
Marcic v Thames Water. A nuisance claim
would only apply to insects on a works site rather than a water
facility. The CA decision covered specific points on damages for
the limited nuisance claim. A child could not recover, as nuisance
requires some interest in the property affected; damages cannot be
recovered on behalf of others. They might recover under the Human
Rights Act, although a person recovering in nuisance would be
unlikely to get anything additional through this route.
See also the further CA decision in the Times Law Reports 3 April 2009.
CA Vicarious Liability Reversal
Biffa Waste Services Ltd v Maschinen Fabrik Ernst
Hese [2009] 122 Con LR 1 CA
Already reported in BLR, the Court of Appeal reversed the
decision of the TCC (reported in 118 Con LR) on the scope of
vicarious liability for the actions of non-employees. The TCC had
been wrong to equate 'supervision' with 'control'.
The case arose out of a fire at a domestic waste plant following
welding works carried out by non-employees of the defendants.
See Brookfield Construction (UK) v Foster and Partners under Keating Chambers Reported Cases on the duty of a professional consultant to provide assistance.
See Kajima UK Engineering v Underwriter Insurance Co. under Keating Chambers Reported Cases on the effect of notification of defects on the scope of insurance cover.
Real Danger Needed For Nuisance
Birmingham Development Co. Ltd v Tyler [2009]
122 Con LR 207 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.
Damages In Tree Roots Case
Charlton v Northern Structural Services Ltd
[2009] 122 Con LR 237 TCC
The defendant structural engineers were found negligent in
advising the removal of large trees near the claimant's
property, causing heave, resulting in foundation cracking. The main
interest of the case is the discussion of the measure of damages as
diminution in value caused by stigma, where no remedial works were
required.
KEATING CHAMBERS REPORTED CASES
Workspace Management Ltd v YJL London Ltd
[2009] EWHC 2017 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
express. 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 claimant from 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
Bovis Lend Lease Ltd v Trustees of the London
Clinic [2009] 123 Con LR 15 TCC
Already reported in CILL, 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 QC, Simon Hughes)
Finola O'Farrell QC
Brookfield Construction (UK) Ltd v Foster &
Partners Ltd [2009] 123 Con LR 47 TCC
Already reported in BLR, the latest case in the Wembley
Stadium litigation concerned a clause in the consultancy agreement
for the provision of architectural services between an
architectural consortium and the design and build contractor. The
Court considered the obligation of the consortium to provide the
contractors with assistance, whether it was a continuing obligation
and the nature and scope of the assistance. NB Brookfield was
formerly Multiplex.
Alice Sims
Kajima UK Engineering Ltd v Underwriter Insurance Co
Ltd [2009] 122 Con LR 123 TCC
The defendant insurance company had provided the claimant
main contractor with indemnity insurance during the performance of
a design and build contract for a block of flats. Notification by
the claimant was only effective in respect of defects and damage to
the works during the period of cover. The scope did not extend to
defects revealed by later investigations, since they could not be
connected to those within the period of cover.
Adrian Williamson QC
Dalkia Energy and Technical Services Ltd v Bell
Group UK Ltd [2009] 122 Con LR 66 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
Multiplex Constructions (UK) Ltd v Cleveland Bridge
UK Ltd [2009] 122 Con LR 88 TCC
Note that Con LR gives this as (No 3) instead of (No
6).
This costs hearing in the long-running Wembley Stadium
litigation was already noted in the December 2008 issue and
received widespread media coverage. The claimant contractor,
Multiplex, had obtained £6.1 million net after judgments on
many issues. The court rejected Multiplex's suggestion that
Cleveland Bridge should pay all the costs, but held that Multiplex
should be treated as the successful party and entitled to a costs
order, because Cleveland Bridge had not accepted that it owed
anything. However, Multiplex had failed comprehensively on some
points and a proportionate costs order was perfectly practicable
and appropriate. The judgment sets out the breakdown and reasoning
on all issues, but overall Cleveland Bridge had to pay 20% of the
costs of the action, increased from 10% because of their failure to
make an offer.
Paul Buckingham
Adrian Williamson QC
Simon Hargreaves
Lucy Garrett
Fitzpatrick Contractors Ltd v Tyco Fire and
Integrated Solutions (UK) Ltd (No 2) [2009] 123 Con LR 69
TCC
N.B. Reported as (No 3) in judgment.
Fitzpatrick failed in its attempt to obtain 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. The claimant, Fitzpatrick, had made a Part 36 offer to
settle proceedings with Tyco, which Tyco eventually accepted. This
costs hearing derived from a dispute on the effect of a liquidated
damages cap.
Marc Rowlands
David Thomas QC
Jonathan Lee
Quartzelec Ltd v Honeywell Control Systems Ltd
[2009] BLR 328 TCC
Already reported in CILL, the adjudicator was held to have
breached the rules of natural justice in failing to consider a
defence raised by the respondent. This was sufficient for the court
to refuse to grant enforcement of the adjudicator's
decision.
Fionnuala McCredie
The Dorchester Hotel Ltd v Vivid Interiors Ltd
[2009] 122 Con LR 55 TCC
Already reported in BLR, 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
YCMS Ltd v Grabiner [2009] 123 Con LR 202
TCC
Already reported in BLR, 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
Gwelhayl Ltd v Midas Construction Ltd [2009]
123 Con LR 91 TCC
Already reported in CILL, 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 payment into court of outstanding fees, which gave
Bailey a lien over them.
Jonathan Lee
North Midland Construction Plc v AE&E Lentjes UK
Ltd [2009] CILL 2736 TCC
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
Primus Build Ltd v Pompey Centre Ltd [2009]
CILL 2739 TCC
Primus was engaged by Pompey, the client, to provide
construction management services in the construction of a hotel and
office building. Primus issued a Notice of Adjudication in respect
of its claim for loss of profit, following exclusion of the office
element from the project. Pompey argued that the Notice of
Adjudication had not been served correctly, as the contract
required any notice under the Contract to be 'delivered
personally' or faxed. The court rejected this argument, finding
that 'actual delivery' met the requirement and the method
was irrelevant. However, Pompey successfully resisted enforcement
of the adjudicator's decision on the ground that the
adjudicator had exceeded his jurisdiction. He had looked at the
accounts, which both parties agreed were irrelevant and had
breached natural justice in using his own figure for calculating
loss of profit rather than the ones adduced.
Gideon Scott Holland
Seele Austria GmBH & Co KG v Tokio Marine Europe
Insurance Ltd [2009] EWHC 2066 TCC LAWTEL
In the long running litigation concerning recoverability
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 allow the amended
particulars of claim to be used to plead a new case, within its
judicial decision.
Adrian Williamson QC
PRACTICE AND PROCEDURE
Settlement With Third Party
Siemens Building Technologies FE Ltd v Supershield
Ltd [2009] TCLR 7 TCC
Already reported in CILL, following the flooding of
Slaughter & May's office, Siemens as sub-sub-contractor had
settled with the parties up the contractual chain, following a
multi-party mediation. Siemens maintained its Part 20 claim against
its sub-sub-sub-contractor Supershield, claiming the sums paid in
settlement of the claims above it. The court held Siemens entitled
to recover in respect of a reasonable settlement it had made. The
test was whether the settlement came within a range which
reasonable people might have made in the same position, taking into
account the strength of the claim, legal advice, uncertainty and
cost of litigation and benefits of settling rather than
litigating.
Construction Law Vol. 20 Issue No. 7 August/September 2009
contains the following articles:
Keeping a lid on costs
by James Pickavance, Herbert Smith
Reform from the specialist's position
by Marion Rich, British Constructional Steelwork
Association and Rudi Klein, Specialist Engineering Contractors'
Group
No compulsory mediation yet
by John Sheils, Shadbolt
Conditional Fee Agreement And Costs Estimate
Woolley v Haden Building Services Ltd [2009]
Con LJ Vol. 25 No. 5 p.388 High Court (Costs Office)
This is an (non-construction) industrial disease case. The
defendants, employers of the deceased, whose widow and dependants
sued, argued that the claimants' costs should be limited to the
estimate of costs set out in the allocation questionnaire (subject
to a 31% margin). This was much lower than the amount claimed on
assessment. The court held that the defendants could not show that
they had placed reasonable reliance on the estimate and so the
costs should not be limited to that estimate.
The Commercial Litigation Journal No. 26 July/August 2009
contains the following articles:
Shopping at the EPO
by Stephen Killin and Erica Orton, Venner Shipley
LLP
(on patent forums)
Working for the clampdown
by Jeremy Summers, Russell Jones & Walker
(on the US Foreign and Corrupt Practices Act)
Because they're worth it
by Kirsten Gilbert, Marks & Clerk
(on unfair competition)
The Italian job
by Francesca Rolla and Gabriele Bonivento, Lovells,
Milan
(on class action laws in Italy)
Peeping behind the curtain
by Stephen Barker, Hill Hofstetter
(on mediation privilege)
Taking a break
by Nyree Applegarth, Higgs & Sons
(on break clauses in commercial leases)
Unsilent witness
by Ben Douglas-Jones, 5 Paper Buildings and James
Stanbury, RGL Forensics
(on forensic accountant experts)
Risking it all
by James Block, The Judge
(on litigation funding options)
Quantum Meriut Requirements
MSM Consulting Ltd v United Republic of
Tanzania [2009] 123 Con LR 154 QBD
This is not a construction case, being concerned with
estate agents seeking payment for finding a property for the
Tanzanian High Commission. The claimants had found the property
eventually purchased, but had never been instructed by the
Tanzanian government. They claimed a quantum meruit, which was
refused by the court. The value of the case, as stated by the Con
LR Editors, is in providing "guidance as to the
circumstances in which a claimant is entitled to payment on a
quantum meruit basis for work done in anticipation of a contract
which does not materialise". There is no single guiding
principle and cases are likely to be very dependent on facts.
Lloyd's Maritime and Commercial Law Quarterly [2009] Part 3 August 2009
contains the following articles:
Contractual prohibitions against assignment
by Roy Goode, St. John's College, Oxford
The effect of subsequent increases of risk on contracts
of insurance
by Marcus Smith, Fountain Court Chambers
Interest On Late Payment
Ruttle Plant Hire Ltd v Secretary of State for
EFRA [2009] BLR 301 CA
The Court of Appeal overruled the TCC's decision which
had denied the claimant contractor interest on payments by the
defendant client. The CA rejected the argument that errors of
calculation in the invoices submitted would prevent the application
of the Late Payment of Commercial Debts (Interest) Act.
See Multiplex Constructions v Cleveland Bridge under Keating Chambers Reported Cases on costs order where question as to who was successful party disputed and appropriateness of proportionate costs order.
See Fitzpatrick Contractors v Tyco under Keating Chambers Reported Cases on criteria for award of indemnity costs.
See Gwelhayl v Midas Construction under Keating Chambers Reported Cases on pre-action disclosure and delivery up.
Pre-Contract Evidence In Interpretation
Chartbrook Ltd v Persimmon Homes Ltd [2009]
CILL 2729 HL
This is a property development case rather than
construction, concerning the agreement between Chartbrook and
Persimmon, by which Persimmon would develop Chartbrook's site,
giving Chartbrook a stated price. This price became the subject of
a dispute between the parties. The issue for the House of Lords was
the correct interpretation of the contract provisions. Lord
Hoffmann's speech, and a number of (obiter) comments, attracted
much attention on the role of evidence of pre-contractual evidence.
It was suggested that there could be exceptions or limitations to
the rule that excludes all evidence of pre-contract negotiation in
interpreting a contract, although the basic rule was upheld.
Pre-contract evidence could be used to give contextual background.
It could also be used to support a claim for rectification or an
estoppel.
See Seele Austria v Tokio Marine Europe Insurance under Keating Chambers Reported Cases on barring of new case arising from amendment of particulars of claim.
FORTHCOMING KEATING CHAMBERS SEMINARS AND LECTURES - AUTUMN 2009
Public Procurement
London: 17th September 2009
Sarah Hannaford QC
Defects and their Legal
Remedies
Society of Construction Law / King's College
London: 17th September 2009
Nerys Jefford QC
NEC3 Contracts and Public Procurement
Bristol: 25th September 2009
Philip Boulding QC
Fionnuala McCredie
Rights of Light - claims and remedies
Birmingham: 1st October 2009
Sarah Hannaford QC
Choosing your own dispute resolution
provisions
Cross Border Arbitration & Dispute Resolution Conference
London: 18th to 20th November 2009
John Marrin 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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