Practical Law

I read Matt Molloy’s blog, What happens when adjudicators make a mistake? with interest, as he mentioned the case of Willow Corp Sarl v MTD Contractors Ltd.

Bryan Cave Leighton Paisner acts for Willow in a dispute with MTD in relation to its role as main contractor in the design and construction of the Nobu Hotel, Shoreditch. Over the last 18 months the parties have been involved in a series of adjudications and court hearings, including a Part 7 claim by MTD and a Part 8 claim by Willow.

Last month, judgment was handed down by Pepperall J in relation to MTD’s Part 7 claim and Willow’s Part 8 claim, which were heard at the same time. I think the judgment raises at least two interesting issues, which I see that Matt touched on in his blog:

• The circumstances in which a defendant to the enforcement of an adjudicator’s decision can bring a Part 8 claim that is heard at the same time as the enforcement, in accordance with the principles in Hutton Construction Ltd v Wilson Properties (London) Ltd.
• Where the court rules that part of the adjudicator’s decision is incorrect and cannot be enforced, the circumstances in which it will sever the decision.

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The idiom “all duck or no dinner“, if you’re not familiar with it, means “all or nothing“. I once worked for a partner that was quite fond of using it, particularly in the context of limitation periods and time bars: if you’re in time, your clients will usually have a smorgasbord of dispute resolution options open to them. If you’re out of time, they go hungry.

Construction contracts often include clauses requiring a party to notify the other party within a specified time if it wishes to make a claim. In some cases, time-bar notice provisions are more than a mere obligation, rather they are a condition precedent to a valid claim.

We are frequently advising clients about conditions precedent in construction contracts, particularly in relation to timely notices for extensions of time and/or loss and expense (for example, under a JCT contract) and compensation events (for example, under an NEC contract). But what about notice requirements for referring a dispute to adjudication? We can often fall back on the position under the Housing Grants, Construction and Regeneration Act 1996 (Construction Act), being that disputes may be referred to adjudication “at any time”. If the Construction Act doesn’t apply, the parties may agree to limit that right. Continue reading →

Earlier this year I found myself waiting for the Court of Appeal to bring the next instalment in a series of interesting decisions regarding subrogation claims in insurance disputes (not a contradiction in terms, I promise!), which I and my colleague John have been taking it in turns to blog about (see Joint insurance and rights of subrogation revisited and Co-insurance and subrogation rights revisited (again!)). Unfortunately (though perhaps not for those involved) the case in question (Haberdashers‘ Aske’s Federation Trust Ltd v Lakehouse Contracts Ltd and others) settled.

But it feels as though there’s been a missed opportunity to answer a question that was left entirely open in Gard Marine and Energy Ltd v China National Chartering Company Ltd: where there is a co-insurance policy in place and a sub-contractor causes loss, if the co-insurance policy (for whatever reason) does not cover the sub-contractor, can the insurer bring a subrogated claim against the sub-contractor or, does it first have to prove the sub-contractor is liable for the loss?    Continue reading →