REUTERS | Beawiharta
May 23, 2017

“Fraud unravels everything”

The title of this post comes from Lord Denning’s infamous statement in Lazarus Estates Ltd v Beasley that:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…”

Lazarus was a landlord and tenant case, where one of the issues was whether the landlord had carried out repairs to the value that was being claimed from the tenant.

In my view, there are certainly parallels to be drawn with some of the adjudications that I’m seeing nowadays, where parties are arguing that an otherwise valid payment notice should not be complied with because of fraud. Continue reading →

REUTERS | Petar Kujundzic
May 19, 2017

“Out of service”: charging orders and service on non-parties outside the jurisdiction

The court has jurisdiction to make charging orders over property, shares or other interests by virtue of section 1 of the Charging Orders Act 1979 (COA 1979).

In construction claims, a charging order can be an appropriate method of enforcing, or at least securing, a judgment where there is a risk that the judgment debtor may go insolvent. Continue reading →

REUTERS | Corbis
May 17, 2017

Compulsory electronic working in the Rolls Building: time to reflect

It has been almost a month since electronic working became compulsory for professional users of the Rolls Building courts, soon to be called the Business and Property Courts, which Paul Darling OBE QC discusses this week. This has come as a shock to many people, although we have been using the scheme for nearly two years in the TCC (as Jennifer Varley discussed in her blog, Electronic working in the TCC: is the ball in our court now?). We have embraced it, finding that it saves time and costs as well as large amounts of photocopying. Continue reading →

REUTERS | Lucy Nicholson
May 16, 2017

Reminder not to approbate and reprobate in adjudication

We haven’t seen a case referring to approbation and reprobation for quite some time, at least not in a substantive sense (I know, I checked). Therefore, I read with interest HHJ McKenna’s judgment in Dawnus Construction Holdings Ltd v Marsh Life Ltd, where the court held that by inviting the adjudicator to exercise his powers under the slip rule, Marsh Life had:

“… waived or elected to abandon its right to challenge enforcement of the Decision since it had elected to treat the Decision as valid.”

How things might have been different if Marsh Life had made an express reservation of its rights. Continue reading →

REUTERS |
May 15, 2017

A new Business and Property Court is coming your way soon

In the last few months, there have been a number of developments in the court system of considerable potential importance to technology and construction practitioners.

A new grouping, the Business and Property Court, has been formed by the judiciary. This essentially comprises the Chancery Division, the Commercial Court and the Technology and Construction Court (TCC). The media release that announced this decision described the new entity as a:

“… single umbrella for Business Specialist Courts across England and Wales.”

Continue reading →

REUTERS | Dominic Ebenbichler
May 9, 2017

Court of Appeal considers judge’s excessive witness questioning

A few years ago I wrote a post on whether adjudicators should act judicially, which looked at a talk by Lord Hamilton, who was then the president of the Scottish Court of Session. Lord Hamilton posited the question, “What has acting judicially to do with adjudicators?”, and I considered a number of the judicial values that he referred to, concluding that I hoped that all adjudicators had something of those values in mind whenever they accepted an adjudication appointment.

This post came to mind when I was reading the Court of Appeal’s judgment in Shaw v Grouby, where one of the defendants’ grounds of appeal was related to whether, because of the way the judge conducted the trial, it had been fair. It all boiled down to whether the judge’s interventions with witnesses meant he was “entering the arena”, which cast doubt over his objectivity and impartiality, and raised the prospect of the witnesses being unable to fairly put their evidence before the court. Continue reading →

REUTERS |
May 3, 2017

Disclosure and production in construction cases

The evolution of the CPR in the wake of the Jackson reforms included the well-known introduction of the “menu” of disclosure options at CPR 31.5(7). The net effect was to promote, as appropriate and applicable, a movement away from well-established “standard” disclosure to a more tailored approach. With the accompanying provisions of CPR 31 and its Practice Directions, the new approach to disclosure was designed to force parties (and the courts) to consider disclosure and production (and the best approach to adopt) at a very early stage. Continue reading →

REUTERS | Fayaz Kabli
May 3, 2017

With friends like these… Lejonvarn v Burgess: the parable for construction professionals continues

In Lejonvarn v Burgess, the Court of Appeal upheld the first instance decision (which Oliver Pearson blogged about) that an architect/project manager providing services gratuitously and in the absence of a contract owes a tortious duty to exercise reasonable skill and care in performing those professional services.

The Court of Appeal also clarified the relevant test to apply in cases involving a relationship that was “akin to a contract” and made some interesting points about the scope of the duty that Mrs Lejonvarn owed which may have a wider application. Continue reading →

REUTERS | Maxim Shemetov
May 2, 2017

Feeling the buzz of battery storage

As an energy lawyer, I’ve been used to an electricity system premised on “you can’t store electricity”.

The physical infrastructure, as well as the contractual and regulatory framework, is based around the real-time balancing of supply and demand. It consequently features degrees of complexity (and commercial opportunity) not seen in the downstream gas sector. But the system is changing.

Advances in storage technology, and in particular battery storage technology, are opening up new possibilities for providing network stability and potentially avoid expensive grid reinforcements to cope with peak load given the changing nature of our generation mix. Continue reading →

REUTERS | Russell Cheyne
May 2, 2017

Getting caught by the “catch all” wording in adjudication

Last month, Fraser J handed down his judgment in Aecom Design Build Ltd v Staptina Engineering Services Ltd, where he held that the adjudicator (Ms Gaynor Chambers) did not exceed her jurisdiction or breach the rules of natural justice. As a result, the court declined to make a declaration that would have severed parts of her decision.

You may have seen what Charles Pimlott had to say about the judgment and noted his comment that it:

“… provides a powerful reminder that adjudication is merely a temporary resolution of any particular dispute and that, only in the plainest of cases, will the court uphold an enforcement challenge on the grounds of excess of jurisdiction or a breach of the rules of natural justice.”

Therefore, if you are wondering what I can add to that, read on. Continue reading →