Building Law Monthly

In Jerram Falkus Construction Ltd v Fenice Investments Inc (No 4) [2011] EWHC 1935 (TCC), [2011] BLR 644 the parties inserted into a contract a term which provided that a party ‘may commence arbitration or legal proceedings within 28 days of the date on which the adjudicator gives his decision.’ Notwithstanding the use of the permissive word ‘may’ it was held that the parties intended compliance with the 28-day time limit to be mandatory so that a failure to bring a challenge within that time period resulted in the decision of the adjudicator becoming conclusive. The case acts as a stark reminder of the importance of compliance with such contractually agreed time limits.

In NAP Anglia Ltd v Sun-Land Development Co Ltd [2011] EWHC 2846, [2011] All ER (D) 172 (Nov), Mr Justice Edwards-Stuart held that an adjudicator had not breached the principles of natural justice. In so concluding, he distinguished between the case where the adjudicator fails to consider and address a substantive defence put forward by the responding party (which will generally result in a breach of natural justice) and a failure to address some particular aspect of the evidence or element of that party’s submissions (which will not amount to a breach). He refused to grant a stay of enforcement on the ground that the issue was also the subject of litigation between the parties, but he did grant a stay to the extent that it had been demonstrated that the claimant might not be able to make repayment in the event that it lost the litigation between the parties.

Mr Justice Flaux in AstraZeneca UK Ltd v Albemarle International Corporation [2011] EWHC 1574 (Comm), [2011] All ER (D) 162 (Jun) held that the question whether an exclusion or limitation clause encompasses a deliberate, repudiatory breach of contract is one of construction of the clause in question. While the authorities support the adoption of a strict approach to the construction of such clauses, it was held (in this respect declining to follow the decision of Gabriel Moss QC in Internet Broadcasting Corporation v MAR LLC [2009] EWHC 844 (Ch), [2009] 2 Lloyd’s Rep 265 (on which see our November 2009 issue, pp10-12)) that there is no presumption against a clause being construed so as to cover a deliberate, repudiatory breach.

In Barr v Biffa Waste Services Ltd [2011] EWHC 1003 (TCC), [2011] 4 All ER 1065 Mr Justice Coulson dismissed the claimants’ nuisance claim on the ground that the defendant operators of a landfill site were operating the site in accordance with the detailed terms of the permit which they had been given and without negligence. This being the case, the use of the land amounted to a reasonable user and did not amount to an actionable nuisance. But he held that the defendant was not entitled to rely on the defence of statutory authority because the relevant statutory duties were not imposed upon the defendant.

In Partner Projects Ltd v Corinthian Nominees Ltd [2011] EWHC 2989 (TCC), [2011] All ER (D) 232 (Nov) Mr Justice Edwards-Stuart held that an adjudicator had not acted in excess of his jurisdiction in making an award of interest to the claimant. The adjudicator was held to have opened up and reviewed the architect’s certificates and to have substituted for the sums certified as due, the sum that he judged should have been certified. On this basis, the adjudicator had been entitled to award interest on the amount due under these corrected certificates. He also rejected the defendant’s claim that it was entitled to a stay of enforcement. Although the claimant was in poor financial health, its present difficulties had been caused in significant part by the defendant’s default and the conduct of the defendant in appearing to trade while insolvent further re-inforced the conclusion that it was not entitled to a stay.