“Practical completion” considered by Court Appeal for first time in 50 years
It is well known that practical completion is often easier to recognise than it is to define, which is why the Court of Appeal’s judgment in Mears Ltd v Costplan Services (South East) Ltd and others is an important read for construction practitioners. It was an appeal from Waksman J’s December 2018 judgment, which was dismissed, and is … Continue reading “Practical completion” considered by Court Appeal for first time in 50 years
Are liquidated damages payable even when the contractor does not complete the works?
Following Sir Rupert Jackson’s judgment in Triple Point Technology Inc v PTT Public Co. Ltd, the short but hardly definitive answer to the question I’ve posed is, it all depends on the precise wording of the liquidated damages (LDs) clause.
Commercial Court upholds hot works “exclusion” in Contractor’s Liability Policy
Aspen Insurance UK Ltd & Liberty Mutual Insurance Europe Ltd v Sangster and Annand Ltd is a case that concerns a fire at a Scottish hotel, and liability under a Contractor’s Liability Insurance policy. It was heard by HHJ Waksman QC (as he then was) in the Commercial Court in June and, earlier this week, the Court of … Continue reading Commercial Court upholds hot works “exclusion” in Contractor’s Liability Policy
Appealing findings made by the TCC: guidance from the Court of Appeal
In 2014, a waste plant owned by Wheeldon Brothers Waste Ltd was damaged by fire. Its insurer, Millennium Insurance Company Ltd, declined to indemnify the company in relation to the fire, citing alleged breaches of a variety of policy terms. At first instance, Mr Jonathan Acton Davis QC, sitting as Deputy High Court judge, ruled … Continue reading Appealing findings made by the TCC: guidance from the Court of Appeal
Ointment for a sting: Arcadis Consulting v AMEC
The Court of Appeal has come to the aid of Arcadis Consulting (UK) Ltd by overturning Coulson J’s judgment in Arcadis Consulting (UK) Ltd v AMEC (BSC) Ltd – a case described by the judge as one “with something of a sting in its tail”. The sting in question was Coulson J’s finding that a contract between … Continue reading Ointment for a sting: Arcadis Consulting v AMEC
Valuable guidance on limitation for contribution claims
In RG Carter Building Ltd v Kier Business Services Ltd, the TCC has given valuable (if unsurprising) guidance on the operation of the limitation period for contribution claims where a contribution to, or indemnity in respect of, a settlement is sought – but certain questions remain unanswered.
Court of Appeal confirms meaning of section 111 of Construction Act 1996
In Adam Architecture Ltd v Halsbury Homes Ltd, the Court of Appeal has confirmed that section 111 of the Construction Act 1996 (and the requirement to serve pay less notices) applies to payments due following completion or termination of a contract, as well as interim payments. In giving the leading judgment, Jackson LJ said he … Continue reading Court of Appeal confirms meaning of section 111 of Construction Act 1996
Excess of jurisdiction or breach of natural justice arguments will succeed only in the plainest cases
In Aecom Design Build Ltd v Staptina Engineering Services Ltd, Fraser J held that an adjudicator had not acted outside of her jurisdiction or in breach of the rules of natural justice by deciding how deductions for alleged defects should be assessed under an NEC Engineering and Construction Short Subcontract. The decision provides a powerful reminder … Continue reading Excess of jurisdiction or breach of natural justice arguments will succeed only in the plainest cases
You can’t enforce against me – I’m appointing an administrator
In South Coast Construction Ltd v Iverson Road Ltd, the contractor obtained an adjudicator’s decision in its favour, awarding it nearly £900,000. The employer did not pay and so the contractor commenced enforcement proceedings in the normal way. What made this case different to a standard adjudication enforcement claim was the fact that the employer … Continue reading You can’t enforce against me – I’m appointing an administrator
Court of Appeal’s guidance on the Party Wall Act and basement construction
In Gray v Elite Town Management Ltd (unreported), the Court of Appeal considered a number of issues, including section 7(1) of the Party Wall Act 1996 in the context of a building owner’s basement works. The court concluded that there is no absolute obligation on party wall surveyors to authorise a design that causes the minimum of … Continue reading Court of Appeal’s guidance on the Party Wall Act and basement construction
The latest word on serial adjudication
In a decision handed down earlier this week, Fraser J has held that Herefordshire District Council (HDC) is entitled to have Mr Matt Molloy’s adjudication decision, in the sum of £10 million, enforced. The judge did not accept the contractor, Amey Wye Valley Ltd’s, submissions that Mr Molloy’s decision was inconsistent with Mr Mark Entwistle’s … Continue reading The latest word on serial adjudication
The latest chapter in Harding v Paice
In a decision handed down last week, Ms Finola O’Farrell QC (sitting as a deputy High Court judge) has held that Mr Paice and Ms Springall (the employers) are entitled to have a recent adjudication decision of Mr Christopher Linnett enforced. She did not accept the submissions made by Mr Harding (the contractor) that: The … Continue reading The latest chapter in Harding v Paice
Novel limitation argument fails
What is the relationship between an application to amend a claim after the expiry of the limitation period and the case-law on what is necessary to “bring” a claim for the purposes of the Limitation Act 1980? The recent TCC decision in Glenluce Fishing Co Ltd v Watermota Ltd provides clarity that a claim issued … Continue reading Novel limitation argument fails
Interplay between Civil Liability (Contribution) Act 1978 and limitation of liability clause
In Bloomberg v LP v Malling Pre-Cast Ltd, a judgment that well illustrates the decline of “business common sense” as an aid to contractual interpretation, Fraser J considered the interplay between section 1(3) of the Civil Liability (Contribution) Act 1978 and a clause limiting liability in a contractor’s collateral warranty.
Decisions, decisions, decisions (in adjudication)
In Harding v Paice and another, the Court of Appeal has held that an adjudicator’s previous decision that, because an employer failed to serve a pay less notice, he was obliged to pay the amount stated in a contractor’s final account, is no bar to the employer starting a further adjudication to determine the true value of … Continue reading Decisions, decisions, decisions (in adjudication)
Supreme Court rules on limitation period for challenging adjudicator’s decision
The Supreme Court has handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc, determining by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment. The issues In most cases a dispute … Continue reading Supreme Court rules on limitation period for challenging adjudicator’s decision
Adjudicators, their office managers, and natural justice: a cautionary tale
The facts of Paice v MJ Harding are bizarre, and potentially troubling for those involved in adjudications. In March 2013, Mr Paice and Ms Springall engaged MJ Harding to construct and fit out two residential houses in Surrey. By September 2013, the works had come to a halt and the parties had fallen out. Two … Continue reading Adjudicators, their office managers, and natural justice: a cautionary tale
Main contract adjudication provisions not incorporated into sub-contract
Edwards-Stuart J has recently held that main contract adjudication provisions were not incorporated into a sub-contract. As a result, the appointed adjudicator had jurisdiction to deal with the dispute over the non-payment of Inviron’s application for £643,283. Imtech Inviron v Loppingdale Plant Loppingdale was appointed under a framework agreement to carry out various infrastructure works at … Continue reading Main contract adjudication provisions not incorporated into sub-contract
TCC considers “same or substantially the same” in paragraph 9(2) of the Scheme
In Harding v Paice, Edwards-Stuart J has considered the meaning of paragraph 9(2) in Part 1 of the Scheme for Construction Contracts 1998. Paragraph 9(2) provides that: “An adjudicator must resign when the dispute is the same or substantially the same as the one which has previously been referred to adjudication and a decision has been taken … Continue reading TCC considers “same or substantially the same” in paragraph 9(2) of the Scheme
If you get an order for indemnity costs, does your cost budget go out of the window?
A recent TCC decision potentially increases the significance of obtaining an order for indemnity costs. In Kellie v Wheatley & Lloyd Architects Ltd, the successful defendant sought to recover costs of over £166,000 despite having had its cost budget slashed from over £140,000 to £91,700. It sought to get around the effect of the cost … Continue reading If you get an order for indemnity costs, does your cost budget go out of the window?
Court of Appeal considers CPR 3.9 and Mitchell in Chartwell v Fergies
In Chartwell Estate Agents Ltd v Fergies Properties SA, the Court of Appeal upheld Globe J’s first instance decision granting relief from sanction for late service of witness statements where the non-compliance was not trivial and there was no good reason for the default. This decision acknowledges the role of case management discretion when applying the … Continue reading Court of Appeal considers CPR 3.9 and Mitchell in Chartwell v Fergies
Time to sort out limitation in economic loss cases
Alternatively, this post could be called, A critique of Co-Op Group Ltd v Birse Developments Ltd, given this case raises a fundamental question in relation to the law of limitation in professional negligence claims involving engineers and other construction professionals. In cases of pure economic loss, what should we take as the relevant date for … Continue reading Time to sort out limitation in economic loss cases
Winding up petition is not a defence to summary judgment in adjudication enforcement
In a judgment that is destined to become the leading case on the topic, Coulson J has restated the law on the relationship between adjudication enforcement and insolvency, and held that the existence of a winding up petition is not a defence to summary judgment.
Court of Appeal finds implied term in construction contract
The Court of Appeal handed down its judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc on 29 November 2013. The judgment determines by what cause of action and by what date a paying party that is dissatisfied with the substance of an adjudicator’s decision needs to issue proceedings to seek to recover that payment.
Adjudication: a bag of tricks, or treats?
In Glendalough Associated SA v Harris Calnan Construction Co Ltd, Edwards-Stuart J considered three issues: The meaning and effect of “an exchange of written submissions” for the purposes of section 107(5) of the Construction Act 1996. The ingredients of construction contracts under section 107(2)(c) of the Construction Act 1996. When a court will “interfere” with the … Continue reading Adjudication: a bag of tricks, or treats?
Adjudication: a Pioneering decision…
The Wimbledon v Vago principles to be applied on an application for a stay of execution of an adjudicator’s decision are familiar to all. Indeed, most practitioners would consider there was nothing left to be worked out by the courts. However, in his decision in Pioneer Cladding Ltd v Graham Construction Ltd, Coulson J had … Continue reading Adjudication: a Pioneering decision…
Tree root damage: making everyone pay?
It is commonly thought that homeowners are not liable for damage caused by the roots of trees on their property, because they lack the necessary degree of foresight. However this is no longer correct. In a decision of some significance, Ramsey J in Khan and Khan v Harrow Council and Sheila Kane has held that … Continue reading Tree root damage: making everyone pay?
Set off in adjudication enforcement after Thameside Construction
The adjudication enforcement in Thameside Construction Company Ltd v Stevens raised, as Akenhead J noted: “…the sometimes vexed question of whether and when a party against whom an adjudicator has decided may seek to set off against the sum said by the adjudicator to be due and avoid or defer payment.”
No implied term extending limitation period following adjudicator’s decision
Last week, Akenhead J handed down judgment in Aspect Contracts (Asbestos) Ltd v Higgins Construction plc. As he noted, it: “…raises an interesting and important issue as to when in terms of limitation of action a party which is dissatisfied with the substance of an adjudicator’s decision needs to issue its proceedings or to raise any counterclaim in … Continue reading No implied term extending limitation period following adjudicator’s decision
So long, SAAMCo? The impact of John Grimes v Gubbins
Ever since the House of Lords handed down their now seminal judgment in SAAMCo, in almost any case involving allegations of professional negligence where it could be said that the damages claimed resulted from a fall in the market, defence lawyers up and down the land have pointed to SAAMCo and written a lengthy letter … Continue reading So long, SAAMCo? The impact of John Grimes v Gubbins
Designers’ liability and their duty to warn
In Cleightonhills v Bembridge Marine Ltd and others, Akenhead J held that a designer could not recover from those involved in a construction project down the line. On the facts, the third parties had not breached their duty of care in tort. The decision also includes some interesting discussions on obiter points, including whether there … Continue reading Designers’ liability and their duty to warn
Preventing the risk in tree root claims
The recent cases of Denness v East Hampshire District Council and Robbins v London Borough of Bexley have shed further light where property damage is alleged to have been caused by the roots of adjacent trees. Both property and tree owners will be affected by these decisions as the long-held view that liability is always … Continue reading Preventing the risk in tree root claims
Strict liability for the escape of fire after Stannard v Gore
In Stannard (t/a Wyvern Tyres) v Gore, the Court of Appeal held that there is no special modification of the rule under Rylands v Fletcher for cases involving the escape of fire. It is an essential requirement of this rule that the “dangerous thing” brought onto the defendant’s land should escape. In so-called fire cases, … Continue reading Strict liability for the escape of fire after Stannard v Gore
Reasonableness of exclusion clauses in downstream supply contracts
The judgment in Allen Fabrications Ltd v ASD Ltd discusses the use and reasonableness of limitation and exclusion clauses in downstream supply contracts. Given the number of supply contracts in the construction industry, this is an important decision for those who produce parts that are then used to manufacture products, and who use such clauses to … Continue reading Reasonableness of exclusion clauses in downstream supply contracts
The meaning of due diligence and reasonable endeavours
In Ampurius v Telford Homes, the High Court looked at two relatively common phrases in construction contracts, “reasonable endeavours” and a promise to carry out works “with due diligence”. It is important that parties concluding contracts and their advisers are aware of the interpretation that the High Court has placed on these phrases as, although … Continue reading The meaning of due diligence and reasonable endeavours
Reasonable foreseeability and liability in nuisance for property damage: a view from the trees
Berent v Family Mosaic Housing & London Borough of Islington has clarified a property owner’s liability for property damage caused by their trees. The decision will be welcomed by local authorities, tree owners and their insurers, and includes wider guidance for property damage cases.
Importance of agreeing price in contract negotiations
In Merit Process Engineering v Balfour Beatty Engineering Services, Edwards-Stuart J considered Balfour Beatty’s application to stay TCC proceedings. Balfour Beatty relied on CPR Part 62.3(2) and section 9 of the Arbitration Act 1996, and argued the parties’ contract incorporated an arbitration clause. The case underlines the importance of ensuring that the necessary terms of an intended contract, … Continue reading Importance of agreeing price in contract negotiations
When a building is destroyed by fire, how do you prove who is to blame?
A number of recent cases illustrate the exacting standard applied by the court to questions of competing-causes in fire claims. Where, who and how The most recent case is United Marine Aggregates Ltd v GM Welding & Engineering Ltd, which shows that working out where the fire started – or who started it – may … Continue reading When a building is destroyed by fire, how do you prove who is to blame?
