Monthly Archives: July 2022

REUTERS | Florion Goga
July 28, 2022

TCC’s judgment in Martlet v Mulalley, a cladding fire safety dispute

Cladding disputes have been ubiquitous in recent years. They are a consequence of the tragic fire at Grenfell Tower in June 2017, which led to a wave of inspections, investigations and scrutiny across the UK as building owners sought to ascertain whether or not their buildings were similarly defective. That process has resulted in numerous disputes relating to all sorts of different buildings – whether residential or commercial, old or new, publicly owned or private developments – which have kept practitioners extremely busy over the past five years.

However, none of those numerous disputes had fought through to a TCC trial. That has now changed with the judgment in Martlet Homes Ltd v Mulalley & Co Ltd, which was handed down earlier this month, following a trial in March and April of this year. Continue reading →

REUTERS | Regis Duvignau
July 27, 2022

Abbey Healthcare v Simply Construct – opening the floodgates or the death of collateral warranties

Rights and wrongs aside, for almost a decade since the Parkwood decision, it has been clear that in certain circumstances a collateral warranty may be deemed by a court to be a “construction contract” for the purposes of the Construction Act 1996. This means that the parties will have the right to adjudicate at any time under a collateral warranty. As the obligations in a collateral warranty usually only go one way, this means that the beneficiary can adjudicate against the contractor or sub-contractor that provided the warranty. Continue reading →

REUTERS | Guglielmo Mangiapane
July 19, 2022

Applying to stay adjudication enforcement proceedings to arbitration

When I was looking at the list of TCC cases to find something to write about this week, my first thought was Adrian Williamson QC’s judgment in FTH Ltd v Varis Developments Ltd, where he refused to grant summary judgment to enforce an adjudicator’s decision due to the claimant’s company voluntary administration (CVA). Unfortunately for me, Simon Thompson beat me to it on that one. I would have made the point that I thought the judge’s dismissal of the claim was a warning to other insolvent parties. While Bresco may have given insolvent parties a right to adjudicate, as someone said to me recently, it might be “a first class ticket to nowhere” as the TCC will not enforce the adjudicator’s decision (something that both Coulson LLJ and Lewinson LLJ effectively said in their judgments in John Doyle Construction Ltd (In Liquidation) v Erith Contractors Ltd).

My second choice is HHJ Hodge QC’s judgment in Metropolitan Borough Council of Sefton v Allenbuild Ltd, where he enforced an adjudicator’s decision and rejected an application for a stay to arbitration. So here goes on a topic that is quite rare in adjudication enforcement proceedings, but possibly not as rare as hens’ teeth! Continue reading →

REUTERS |
July 15, 2022

Episode 12 of The Construction Briefing podcast

The Construction Briefing is an alternative way of learning about key developments in construction law, with the Practical Law Construction editorial team discussing some of the wider issues those developments raise.

In Episode 12, Michelle Rousell and Yassir Mahmood discuss the Court of Appeal’s judgment in Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP. They are joined by Barry Hembling, partner at Watson Farley and Williams, who has represented Abbey Healthcare throughout the litigation.

In addition to explaining what the Court of Appeal decided, they consider:

  • Who will welcome this decision and who might be worried by it?
  • In terms of drafting, what can you do to make sure that your collateral warranty can be adjudicated, and what can you do to make sure it can’t?
  • How does this judgment affect third party rights? Might parties start favouring them?

You can subscribe wherever you get your podcasts (like Apple Podcasts, Google Podcasts and Spotify), enabling you to download and listen to all episodes on the go on your phone. Alternatively, you can use our audio and video RSS feed to access the latest edition as soon as it is published.

To give feedback or suggest topics for future episodes, please use Ask to contact us.

REUTERS | Tobias Schwarz
July 13, 2022

Gama Aviation v MWWMMWM: the problem of contractual formalities and informal novation

The problem of what happens when parties do not act in accordance with contractual formalities is a hardy perennial in commercial disputes. Certain instances of the problem are peculiar to the construction industry, notably absent or inadequate notices of events giving rise to time and money, or absent or inadequate payment or pay less notices. Each of these has given rise to complex caselaw. Other instances are common to all commercial contexts. One is the practice of including a “no oral modification” clause in a contract, but then informally agreeing an amendment. This situation has proved sufficiently difficult to require a thorough review and restatement of the law by the Supreme Court in MWB Business Exchange Centres Ltd v Rock Advertising Ltd.

The recent case of Gama Aviation v MWWMMWM shows the issues thrown up by an informal novation of an agreement that one side said prohibited such informal variation, and the other side said made no provision for it. Continue reading →

REUTERS | Leonhard Foeger
July 5, 2022

How far does an interim valuation adjudication bind determination of the final account?

I was lucky enough to be asked to give a recent case law update lecture for the Adjudication Society. At the end one of the delegates asked a very sensible question, namely to what extent do matters decided by an adjudicator concerning an interim valuation bind later valuations. It’s an issue that I’ve been asked about before, and it’s also one of those that can promote polarising debate, with some extreme positions taken.

Although there have been plenty of TCC judgments dealing with the question of what constitutes the “same or substantially the same dispute“, I cannot recall one that deals directly with the question of the extent to which an adjudicator’s decision concerning an interim valuation will bind the subsequent determination of the final account. That is until Mrs Justice O’Farrell handed-down her judgment in Essential Living (Greenwich) Ltd v Elements (Europe) Ltd, which is the case I want to talk about this week. Continue reading →

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