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Building Law Monthly
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Articles for November 2009
ADJUDICATION, JURISDICTION, BIAS AND THE NEED FOR A SUFFICIENTLY REASONED DECISION
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03 November 2009
In Balfour Beatty Engineering Services (HY) Ltd v Shepherd Construction Ltd [2009] EWHC 2218 (TCC), [2009] All ER (D) 125 (Oct) Mr Justice Akenhead dismissed various challenges to the decision of an adjudicator and held that the decision was enforceable. He rejected the submission that the adjudicator lacked jurisdiction to decide the issues that he had decided, that the adjudicator was guilty of bias (whether that bias was actual or apparent) and that the adjudicator had failed to give a sufficiently reasoned decision. In relation to the latter submission Akenhead J helpfully set out a number of conclusions which he derived from the case law, albeit that the standard which he required of adjudicators in terms of the clarity of their reasoning may be said to be rather low.
MULTIPLE ADJUDICATIONS AGAIN
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03 November 2009
In HS Works Ltd v Enterprise Managed Services Ltd [2009] EWHC 729 (TCC), [2009] BLR 378 Mr Justice Akenhead held that two decisions reached by two adjudicators in relation to disputes between the claimant and the defendant on the same construction project were both valid and enforceable and that the court and the parties were required to give effect to both decisions. In drawing up an order to give effect to both decisions he held that the court has a discretion as to how any order or orders on judgment should be drawn and that, on the facts of the case, the order should be drawn to reflect the net effect of this judgment (which was likely to be that a balance was due to the claimant). This pragmatic approach is to be welcomed, although it is likely that subsequent cases well test the limits of this approach.
EXCLUSION CLAUSES AND DELIBERATE REPUDIATORY BREACH
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03 November 2009
In Internet Broadcasting Corporation v MAR LLC [2009] EWHC 844 (Ch), [2009] 2 Lloyd’s Rep 295 Gabriel Moss QC, sitting as a deputy judge of the High Court, held that an exclusion clause did not cover a deliberate, personal repudiatory breach of contract. His conclusion suggests that the courts may be more reluctant to conclude that an apparently widely drafted exclusion clause is apt to encompass certain forms of fundamental breach.
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