Monthly Archives: April 2018

REUTERS | Mukesh Gupta
April 25, 2018

Co-insurance and subrogation rights revisited (again!)

My colleague, Natalie Wardle, commented on the Supreme Court’s decision in Gard Marine and Energy Ltd v China National Chartering Company Ltd in her May 2017 blog. As she noted, the judgments (and the 3:2 majority verdict) left a number of questions unanswered. Two of these were:

  • What is the strength of the implied term that one co-insured party may not sue another, and when it may be rebutted.
  • The juridical basis for the implied term and its consequential impact on sub-contractors.

These issues have arisen in two recent cases, which I propose to examine briefly in this blog. They throw a little more light on the situation, but by no means provide all the answers. Continue reading →

REUTERS | David Mdzinarishvili
April 24, 2018

Cash flow tensions in adjudication enforcement

Much has been written about Fraser J’s judgment in Gosvenor London Ltd v Aygun Aluminium UK Ltd, with both Tim Sampson and Abdul Jinadu discussing various issues on this blog.

What I thought was interesting about the judgment was how it illustrates the tension between adjudication and the principle embodied within it of keeping cash flowing, and how a successful challenge on enforcement may stop it. Ironically, this is often at a time when a party most needs cash to keep flowing.  Continue reading →

REUTERS |
April 18, 2018

Fraud and adjudication: a new front

Anyone with a substantial adjudication practice will have experience of a lay client asking these questions (or some version thereof):

“Why can’t we call them crooks? They [the other party] are clearly fraudulent. Why can’t we say so?”

As a legal practitioner you have to patiently explain that fraud can only be pleaded on specific instructions and must be supported by prima facie evidence. However, despite the reluctance of lawyers to plead fraud, it is a fact that fraud has always been an issue in adjudication and in these days of the “smash and grab” adjudication, Coulson J’s (as he then was) decision in Grove Developments Ltd v S&T (UK) Ltd notwithstanding, alleging fraud is an increasingly attractive argument of last resort to avoid making payment following an unfavourable adjudication decision.

In Gosvenor London Ltd v Aygun Aluminium UK Ltd, Fraser J had reason to consider the relationship between fraud and adjudication. In a case with some extraordinary facts, he restated established principles and also made some new law by expanding the ways in which allegations of fraud can be deployed in an attempt to avoid paying sums awarded by  an adjudicator to a party suspected of questionable behaviour. Continue reading →

REUTERS | Eloy Alonso
April 11, 2018

An unplanned surprise: Implied planning obligations – Clin v Walter Lilly

Recently, in the course of reviewing a proposed building contract for an employer, I had cause to consider how responsibility for obtaining planning consents had been addressed. Or rather, whether it had been addressed at all. Jean-François Clin v Walter Lilly & Co Ltd is a forceful reminder to effectively deal with this issue. The Court of Appeal held that, in the absence of an express term to the contrary, a term was implied into the parties’ contract requiring the employer to obtain planning permission for redevelopment of the property and, generally, making the employer responsible for obtaining necessary consents. Continue reading →

REUTERS | Amir Cohen
April 10, 2018

“I’m forever blowing bubbles” but I’m biased!

Bias and apparent bias is a subject that has cropped up many times on this blog, whether it was an adjudicator “phoning a friend“, an arbitrator (allegedly) being appointed too many times by the same referring party (although that isn’t one of mine!) or a judge getting upset over his lost luggage (who wouldn’t be?).

It seems anyone involved in court or tribunal work is vulnerable to an accusation of it. Therefore, it should come as no surprise that I’m commenting on another example of behaviour that gives rises to the charge. Continue reading →

REUTERS | Clodagh Kilcoyne
April 4, 2018

New limb (g) added to Wimbledon v Vago principles and fraud allegations merit stay

Last week, Fraser J handed down his judgment in Gosvenor London Ltd v Aygun UK Ltd, a case in which the defendant (Aygun) was seeking to resist payment of an adjudicator’s award of around £650,000 on the grounds that a substantial part of the award was allegedly derived from fraudulent invoicing of Aygun. In the alternative, Aygun sought a stay on the basis of fraud, alleged witness intimidation and, most importantly, the entirely unsatisfactory nature of the claimant’s (Gosvenor) statutory accounts for 2016/2017 and the unbelievable explanations given on its behalf as to the contents. This combination of factors led the court to conclude it was unlikely that Gosvenor would repay the adjudicator’s award, were it required to do so following a challenge to the adjudicator’s decision in subsequent TCC proceedings.

Fraser J’s judgment is important for a number of reasons. Critically it has added a further principle to those set out by HHJ Coulson QC (as he then was) in Wimbledon v Vago in order to deal with the factual situation presented to it. Continue reading →

REUTERS | Srdjan Zivulovic
April 4, 2018

The uncharted Grove: smash and grab practice following Grove v S&T

Coulson J’s decision in Grove Developments Ltd v S&T (UK) Ltd has triggered a great deal of commentary, including Jonathan Cope’s post, which I read with great interest. It got me thinking about what strategies an employer or contractor might adopt to counter a smash and grab adjudication, either pre-emptively or after the referral has landed. Continue reading →

REUTERS | Vijay Mathur
April 3, 2018

Court of Appeal reverses contributory negligence apportionment in project monitoring case

Just like experts are a recurring theme on this blog, it seems that project monitoring is too, as I have considered the judgment in Bank of Ireland v Watts Group plc, looked at the judgment in Bank of Ireland v Faithful & Gould Ltd and I have also discussed the judgment in Lloyds Bank plc v McBains Cooper Consulting Ltd.

I’m back looking at Lloyds Bank plc v McBains Cooper Consulting Ltd this week, as the case has been before the Court of Appeal. It is quite a tough one because the original judgment was long and complex (I called it a “monster judgment” at the time), and much of the appeal turns on the facts (which won’t necessarily be of interest). However, here goes. Continue reading →

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