Aristotle:
“How many a dispute could have been deflated into a single paragraph if the disputants had dared to define their terms.”
The first half of 2014 has seen a number of important decisions affecting construction and engineering practitioners. However, we have not included cases arising from the Jackson reforms, particularly costs management and relief from sanctions applications as a consequence of the Court of Appeal’s judgment in Mitchell v News Group.
January to July 2014 cases
In 199 Knightsbridge Development Ltd v WSP UK Ltd, Edwards-Stuart J found that while an engineer had breached its contractual duty of care, the claimant property developer had not shown that the breach caused the losses it suffered.
In Co-Operative Group Ltd v Birse Developments Ltd and others, Stuart-Smith J held that a building contractor’s cause of action in tort against its sub-contractors accrued on or before practical completion and that a failed assignment did not create a trust for the benefit of the putative assignee.
In Cramaso LLP v Viscount Reidhaven’s Trustees, the Supreme Court considered a claim based on negligent misrepresentation made in pre-contractual negotiations. The key issues were whether the defendant had a continuing responsibility for the negligent misrepresentation until the contract was concluded, and whether the defendant was liable for the losses suffered by the contracting party as a result of a negligent misrepresentation made earlier to the party’s agent.
In Devon County Council v Celtic Composting Systems Ltd, Stuart-Smith J held that a dispute had crystallised but that the adjudicator did not have jurisdiction to determine whether any payment should be made to the referring party’s assignee.
In Dillard v F&C Commercial Property Holdings Ltd, Akenhead J held that a deed entered into by the parties to address issues arising from the building owner’s development governed the parties’ dispute, not the Party Wall etc. Act 1996 (PWA 1996).
In Garritt-Critchley and others v Ronnan and another, HHJ Waksman QC in the Chancery Division, Manchester District Registry, held that indemnity costs were payable because of a party’s unreasonable refusal to mediate.
In Laker Vent Engineering Ltd v Jacobs E&C Ltd, Ramsey J held that the parties’ sub-contract was a construction contract as the “primary activity” exception in section 105(2)(c) of the Housing Grants, Construction and Regneration Act 1996 (Construction Act 1996) did not apply. This meant the adjudicator had jurisdiction and his three decisions were enforced.
In Liberty Mercian Ltd v Cuddy Civil Engineering Ltd and another, Ramsey J considered an application for specific performance to require the defendant to fulfil its contractual obligations to provide a performance bond and collateral warranties to the claimant.
In Manolete Partners plc v Hastings Borough Council, the Court of Appeal rejected an appeal in a claim for compensation under section 106 of the Building Act 1984.
In MT Højgaard a/s v E.ON Climate and Renewables UK Robin Rigg East Ltd and others, Edwards-Stuart J determined the parties’ dispute in connection with the design and construction of offshore wind farm foundations, finding that the contractor was in breach of an obligation to deliver works with a minimum service life of 20 years.
In Mul v Hutton Construction Ltd, Akenhead J held that the term “appropriate deduction” in clause 2.30 of the JCT Intermediate Building Contract, 2005 edition (IC05) means “a deduction which is appropriate in all the circumstances”.
In Patel and another v Peters and others, the Court of Appeal considered the meaning of “refuses” and “neglects” to act effectively in sections 10(6) and 10(7) of the PWA 1996. On the facts, the building owners’ party wall surveyor had acted effectively and the adjoining owners’ surveyor’s ex parte award was quashed.
In Sainsbury’s Supermarkets Ltd v Condek Holdings Ltd and others, Stuart-Smith J struck out tort claims for pure economic loss against two defendants.
In Stopjoin Projects Ltd v Balfour Beatty Engineering Services (HY) Ltd, HHJ Havelock-Allan QC in the Bristol District Registry of the TCC considered whether a failed assignment gave rise to an implied trust, in the context of a claim by a factoring company relating to construction sub-contracts.
In The Secretary of State for Defence v Turner Estate Solutions Ltd, Ramsey J considered a challenge to an award under section 68 of the Arbitration Act 1996, and refused to interfere with the arbitration process and disturb an arbitral tribunal’s award.
In Twintec Ltd v Volkerfitzpatrick Ltd, Edwards-Stuart J granted injunctive relief to prevent a party pursuing an adjudication as the adjudicator was invalidly appointed.
In University of Brighton v Dovehouse Interiors Ltd, Carr J held that for the purposes of clause 1.9.2 of the JCT Intermediate Building Contract with contractor’s design (ICD), an adjudication was commenced when the notice of adjudication was given.
In Vivergo Fuels Ltd v Redhall Engineering Solutions Ltd, Ramsey J held that an employer was in repudiatory breach for its puported termination of a contract on an engineering project.
In Wales And West Utilities Ltd v PPS Pipeline Systems GmbH, Akenhead J held that an adjudicator did have jurisdiction to reach his decision, which meant that decision and a subsequent adjudicator’s decision were enforced.
In Walker Construction (UK) Ltd v Quayside Homes Ltd and another, the Court of Appeal unanimously overturned a costs decision where a party only recovered a small percentage of its counterclaim. The court also looked at the binding nature of an adjudicator’s decision.
In West and another v Ian Finlay & Associates (a firm), the Court of Appeal held that a net contribution clause in a professional appointment was effective in limiting an architect’s liability.
In Wuhan Guoyu Logistics Group Co Ltd and another v Emporiki Bank of Greece Sa, the Court of Appeal held that a valid demand made under a performance bond remained valid even if it subsequently became clear that the seller was not actually entitled to the money guaranteed by the performance bond.
For details of notable decisions from 2013, see:
