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Building Law Monthly
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Articles for September 2010
BATTLE OF THE FORMS: CONTRACT CONCLUDED ON NEITHER PARTY’S TERMS
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08 September 2010
In GHSP Incorporated v AB Electronic Ltd [2010] EWHC 1828 (Comm), [2010] All ER (D) 217 (Jul) Mr Justice Burton held that, although the parties had entered into a contract, the terms of the contract..
ADJUDICATION AND APPARENT BIAS
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08 September 2010
In Fileturn Ltd v Royal Garden Hotel Ltd [2010] EWHC 1736 (TCC), [2010] All ER (D) 128 (Jul), Mr Justice Edwards-Stuart dismissed an objection to the enforcement of an adjudicator’s award on the ground of..
LIABILITY FOR ‘DEMONSTRABLY CONSEQUENTIAL’ LOSSES
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08 September 2010
In Network Rail Infrastructure Ltd v Conarken Group Ltd [2010] EWHC 1852 (TCC), [2010] All ER (D) 237 (Jul) Mr Justice Akenhead held that, in negligence cases which involve physical damage to property owned by..
CONCURRENT LIABILITY, COLLATERAL WARRANTIES AND THE NATURE OF THE LOSS SUFFERED
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08 September 2010
The decision of Mr Justice Akenhead in How Engineering Services Ltd v Southern Insulation (Medway) Ltd [2010] EWHC 1878 (TCC), [2010] All ER (D) 256 (Jul) is a further instalment in the litigation which we..
THE MEANING OF ‘ALL REASONABLE ENDEAVOURS’
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28 September 2010
One of the issues considered by Mr Justice Vos in CPC Group Ltd v Qatari Diar Real Estate Investment Company [2010] EWHC 1535 (Ch), [2010] All ER (D) 222 (Jun) was the meaning of the phrase ‘all reasonable endeavours’. He held that an obligation to use ‘all reasonable endeavours’ does not necessarily require the party subject to the obligation to sacrifice its commercial interests. Crucially, the obligation in the contract was in any event qualified by the words ‘but commercially prudent’ endeavours. This put a ‘brake’ upon the obligation and underlined the fact that the party subject to the obligation was entitled to take account of its own commercial interests.
NO AGREEMENT TO GIVE ADJUDICATOR JURISDICTION
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28 September 2010
In Aedifice Partnership Ltd v Shah [2010] EWHC 2106 (TCC), [2010] All ER (D) 65 (Aug) Mr Justice Akenhead held that an adjudicator had not been given jurisdiction to decide his own jurisdiction and that there had been no express or implied agreement that he should have such jurisdiction. Further, he held that the defendant had entered an adequate reservation in relation to the jurisdiction of the adjudicator and that he had effectively maintained that reservation throughout the adjudication. The judgment of Akenhead J also contains a helpful re-statement of the central principles that will be applied by a court when considering such jurisdictional issues and any reservation in relation thereto.
ADJUDICATION, APPROBATION AND REPROBATION
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28 September 2010
In Nickleby FM Ltd v Somerfield Stores Ltd [2010] EWHC 1976 (TCC), [2010] All ER (D) 07 (Aug) Mr Justice Akenhead dismissed a challenge to the jurisdiction of an adjudicator. The challenge was made principally on the basis that the claimant had advanced its case before the court on a different basis to that which had been advanced before the adjudicator. In rejecting the challenge he held that the claimant had not advanced a case on jurisdiction which was materially or prejudicially different from that which it had advanced in the adjudication. In so concluding he doubted whether the principle of election (or of approbation and reprobation) could properly be applied to prevent the claimant from enforcing the decision of the adjudicator.
THE BORDERLINE BETWEEN CONTRACT AND UNJUST ENRICHMENT
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28 September 2010
The judgment of Mr Justice Beatson in Benourad v Compass Group plc [2010] EWHC 1882 (QB), [2010] All ER (D) 228 (Jul) contains a helpful summary of the principles which will be applied by a court when deciding whether or not negotiating parties have entered into a binding contract and, if they have not, whether one party may incur a restitutionary liability to the other as a result of services rendered by the other party.
THE MEANING OF ‘GOOD FAITH’
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28 September 2010
One of the issues considered by Judge Furst QC, sitting as a Deputy Judge of the High Court, in Gold Group Properties Ltd v BDW Trading Ltd [2010] EWHC 1632 (TCC), [2010] All ER (D) 18 (Jul) was the nature and extent of the obligation that is assumed by a party who agrees to act at all times in good faith. He held that it does not impose a fiduciary duty so that the party subject to the obligation is not required to abandon the pursuit of self-interest. Rather it operates to qualify the pursuit of self-interest. Good faith requires the parties to act in a way that will allow both parties to enjoy the anticipated benefits of the contract, but it does not require either party to give up a freely negotiated financial advantage clearly embedded in the contract.
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