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July to December 2015, a half year case review

J K Rowling, Harry Potter and the Deathly Hallows:

“‘Are you planning to follow a career in Magical Law, Miss Granger?’ asked Scrimgeour.

‘No, I’m not,’ retorted Hermione. ‘I’m hoping to do some good in the world!'”

The second half of 2015 has seen a number of interesting decisions affecting construction and engineering practitioners. For ease, we have divided them into adjudication cases and “other” cases.

Notable adjudication cases from July to December 2015

In Caledonian Modular Ltd v Mar City Developments Ltd, Coulson J refused to enforce an adjudicator’s decision, finding the claimant’s interim application for payment was made early and was invalid.

In Gotch and another v Enelco Ltd, Edwards-Stuart J held that it was not appropriate for the claimants to pursue a CPR 8 declaration as there was no immediate need for such relief.

In Harding (t/a MJ Harding Contractors) v Paice and another, the Court of Appeal confirmed (among other things) that an adjudicator must have reached a decision on a dispute previously referred to adjudication.

In Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd, Edwards-Stuart J enforced an adjudicator’s decision, finding the adjudicator was correctly appointed by CIArb and applied the right adjudication rules (NEC’s Option W2).

In Mi-Space (UK) Ltd v Bridgwater Civil Engineering Ltd, Edwards-Stuart J held that the parties reached agreement by email exchange, which meant there was no dispute to refer to adjudication. As such, the adjudicator’s decision was not enforced.

In Purton (t/a Richwood Interiors) v Kilker Projects Ltd, Stuart-Smith J enforced an adjudicator’s decision, finding there was an oral construction contract. Further, there had been no approbation and reprobation.

In RMP Construction Services Ltd v Chalcroft Ltd, Stuart-Smith J enforced an adjudicator’s decision, noting that regardless of how the parties’ contract was described, the Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649) (Scheme for Construction Contracts 1998) applied and the adjudicator had jurisdiction.

In Severfield (UK) Ltd v Duro Felguera UK Ltd, Stuart-Smith J declined to enforce an adjudicator’s decision, finding that part of the works fell within the exception in section 105(2)(c) of the Housing Grants, Construction and Regeneration Act 1996 (Construction Act 1996).

In Science and Technology Facilities Council v MW High Tech Projects UK Ltd, Fraser J enforced an adjudicator’s two decisions, finding that all the defendant’s various challenges to enforcement failed.

In Wycombe Demolition Ltd v Topevent Ltd, Coulson J granted summary judgment to enforce an adjudicator’s decision, finding the adjudicator did not breach the rules of natural justice.

Other notable cases from July to December 2015

In Bloomberg LP v Malling Pre-Cast Ltd, Fraser J considered the limitation of liability clause in a cladding contractor’s collateral warranty with a tenant, and the interplay with section 1(3) of the Civil Liability (Contribution) Act 1978.

In Bridgland v Earlsmead Estates Ltd, HHJ David Grant struck out a claim for breach of statutory duty under the Party Wall etc. Act 1996 (PWA 1996).

In British Airways plc v Spencer, the Chancery Division gave guidance on when to permit a party to call or rely on expert evidence.

In Cavendish Square Holding BV v El Makdessi and ParkingEye Ltd v Beavis, the Supreme Court reset and clarified the penalty rule, unanimously allowing the appeal in Cavendish and dismissing the appeal in ParkingEye.

In GBM Minerals Engineering Consultants Ltd v GB Minerals Holdings Ltd, Fraser J allowed the parties to amend their respective statements of case, seven weeks before trial, even though it meant the trial date had to be vacated.

In GSK Project Management Ltd (in liquidation) v QPR Holdings Ltd, Stuart-Smith J halved the claimant’s costs budget.

In Henia Investments Inc v Beck Interiors Ltd, Akenhead J granted the employer declaratory relief, finding there was no valid contractor’s payment notice, there was a valid pay less notice and the employer could deduct liquidated damages even though the contract administrator had not decided the contractor’s extension of time claim.

In Lloyds Bank plc v McBains Cooper Consulting Ltd, Edwards-Stuart J found that a project monitor had acted negligently, but that the court should take into account the lender’s contributory negligence.

In Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another, the Supreme Court confirmed that business necessity is required for a term to be implied into a contract.

In NH International (Caribbean) Ltd v National Insurance Property Development Company Ltd (Trinidad and Tobago), the Privy Council held that a contractor had been entitled to terminate its engagement under a contract based on the FIDIC Red Book (1999).

In Northrop Grumman Missions Systems Europe Ltd v BAE Systems (Al Diriyah C4I) Ltd, the Court of Appeal gave guidance on the incorporation of terms and limits of the factual matrix.

In Obrascon Huarte Lain SA v HM Attorney General for Gibraltar, the Court of Appeal dismissed an appeal against Akenhead J’s decision that an employer had been entitled to terminate a contractor’s engagement under an engineering contract based on the FIDIC Yellow Book.

In Persimmon Homes Ltd v Ove Arup & Partners Ltd, Stuart-Smith J interpreted limitation and exclusion clauses in a professional appointment as protecting the consultant from liability.

In Portsmouth City Council v Ensign Highways Ltd, Edwards-Stuart J held that there was no overriding obligation on the council to act in good faith when awarding service points, but there was an implied term that the council had to act honestly and on proper grounds, and not in a manner that was arbitrary, irrational or capricious.

In Reid v Buckinghamshire Healthcare NHS Trust, the court penalised the losing party where it had unreasonably refused to engage in mediation.

In Salt v Stratstone Specialist Ltd, the Court of Appeal upheld the High Court’s decision that the contract could be rescinded for misrepresentation under section 2(2) of the Misrepresentation Act 1967.

In Scottish Power UK plc v BP, the Commercial Court determined a number of preliminary issues of law relating to the interpretation of an exclusive remedy provision, an exclusion clause and conditions precedent.

In Severfield (UK) Ltd v Duro Felguera UK Ltd, Coulson J declined to grant summary judgment on a claim carved out of the contractor’s earlier interim application for payment. One of the issues was whether the works fell within the exception in section 105(2)(c) of the Construction Act 1996.

In SSE Generation Ltd v Hochtief Solutions AG, Lord Woolman in the Outer House, Court of Session decided that the parties’ liability under an NEC2 ECC was not displaced by joint names construction all risks (CAR) insurance.

In Van Oord UK Ltd v Allseas UK Ltd, Coulson J disregarded the claimants’ expert quantum evidence in full. Separately, the court considered whether a defendant’s Part 36 offer should be treated as a claimant’s offer or a defendant’s offer, given the defendant’s counterclaim.

In Wellesley Partners LLP v Withers LLPthe Court of Appeal held that in a solicitors’ negligence case, in cases of concurrent liability in contract and in tort, the narrower principle of remoteness of damage in contract applies.

In Wilson and Sharp Investments Ltd v Harbour View Developments Ltdthe Court of Appeal granted an injunction restraining a building contractor from issuing a winding-up petition against its employer.

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