i-law.com

P4 LTD v UNITE INTEGRATED SOLUTIONS PLC

[2007] BLR 1

Costs - CPR 36.20(2) - Claimant failing to better Part 36 payment into court - Whether unjust to make usual order for costs. Pre-action process - Failure to provide important information to claimant - Whether failure relevant - Whether failure should deprive party of any of its costs. Mediation - Refusal to mediate - Whether reasonable to refuse - Whether failure should deprive party of any of its costs.

REINWOOD LTD v L BROWN & SONS LTD

[2007] BLR 10

JCT Standard Form of Building Contract 1998 edition Private with Quantities - Clause 28.2.4 - Determination - Repetition of specified defaults - Whether first notice was valid - Whether second notice valid. JCT Standard Form of Building Contract 1998 edition Private with Quantities - Clause 28.2.5 - Whether determination “unreasonable and vexatious”.

HART INVESTMENTS LTD v (1) FIDLER (2) LARCHPARK LTD

[2007] BLR 30

CPR Part 12 - Setting aside judgment in default - Mandatory requirement to set aside judgment in default for irregular service by fax - Mandatory requirement to set aside judgment for irregular identification of date of service in certificate of service. CPR Part 12 - Setting aside judgment in default - Discretion to set aside judgment in default. CPR Part 6 - CPR 6PD3.1 - Service of claim form by fax - Requirements for service. CPR Part 6.7 - Service of claim form by post - Calculation of date of service - Days for service include weekends. CPR Part 24 summary judgment - Enforcement of adjudicator’s decision - Jurisdiction of adjudicator. Housing Grants, Regeneration and Construction Act 1996, section 108 - Requirement that referral notice be served within seven days of notice of adjudication. Housing Grants, Regeneration and Construction Act 1996, section 107 - Requirement for construction contract to be in writing - Requirement for all terms to be in writing.

SECRETARY OF STATE FOR TRANSPORT v PELL FRISCHMANN CONSULTANTS LTD

[2007] BLR 46

Disclosure - Application against a non-party - Supreme Court Act 1981, section 34 - CPR Rule 31.17 - Threshold requirements - Balancing applicant’s needs for documents with competing interests - Relevance of documents - Equal assistance to parties in action - Court’s discretion.

REGAN v PAUL PROPERTIES LTD & ORS

[2007] BLR 56

Nuisance - Infringement of rights to light - Remedy - Whether injunction should be granted or damages awarded in lieu of an injunction.

QUIETFIELD LTD v VASCROFT CONSTRUCTION LTD

[2007] BLR 67

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Section 108(3) - Successive adjudications involving Same Claim to Relief - Whether adjudicator entitled to take into account in second adjudication matters not relied on in earlier adjudication - Questions of natural justice and enforceability of second adjudication Decision.

(1) THEMIS AVRAAMIDES (2) EMMA MAITLAND v (1) MARK COLWILL (2) STEPHEN MARTIN (T/A BATHROOM TRADING COMPANY)

[2007] BLR 76

Contracts (Rights against Third Parties) Act 1999, section 1(3) - Ability of third party to sue under contract - Only parties expressly identified in contract may sue.

CHARLES CHURCH DEVELOPMENTS LTD v STENT FOUNDATIONS LTD and PETER DANN LTD

[2007] BLR 81

Amendment - New cause of action - Matters arising from defence of one defendant - Expiry of limitation period - Section 35A of the Limitation Act - CPR 17.4 - New claim arising out of same facts - Discretion - Non-compliance with Pre-Action Protocol

McCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD v NATIONAL GRID GAS PLC

[2007] BLR 92

Adjudication - Jurisdiction - Adjudication provision in main agreement - Supplemental agreement - Whether adjudicator had jurisdiction to determine matters alleged to have been compromised by settlement agreement. Adjudication - Stay of execution - Provision of bond. Arbitration - Relevance of jurisdiction clause. Arbitration - Stay - Section 9 of the Arbitration Act 1996.

AIRD & ANOTHER v PRIME MERIDIAN LTD

[2007] BLR 105

Evidence - Experts’ joint statement - CPR Rule 35.12(3) - Stay for mediation - Whether signed joint statement was admissible - Privilege - Without prejudice - Whether applied to joint statement.

ALDI STORES LTD v (1) WSP GROUP PLC (2) WSP LONDON LTD (3) ASPINWALL & COMPANY LTD

[2007] BLR 113

Civil Procedure Rules - CPR Part 3.4(2)(b) - Striking Out - Abuse of Process - Multi-party litigation - Defendants involved in prior claim as Part 20 defendants - Claimant declined to add them as defendants - Whether abuse of process to now bring claim against defendants.

EPPING ELECTRICAL COMPANY LTD v BRIGGS AND FORRESTER (PLUMBING SERVICES) LTD

[2007] BLR 126

Adjudication - Failure to issue decision timeously - Effect of failure. Housing Grants, Construction and Regeneration Act 1996 section 108(2) - Mandatory requirement for adjudicator to reach decision within period agreed by parties - Whether para 25 of Construction Industry Council Adjudication Rules inconsistent - Substitution of para 25 of Construction Industry Council Model Adjudication procedure by Scheme for Construction Contracts.

SHEPHERD HOMES LTD v ENCIA REMEDIATION LTD and GREEN PILING LTD (Third Party)

[2007] BLR 135

Exclusion and limitation clauses - Offer - Counter offer - Acceptance - Notice of limitation clause to other party - Limit of liability to contract sum - Not unusual or onerous - Waiver - Estoppel - Unfair Contract Terms Act 1977.

ALAN PHILLIPS ASSOCIATES LTD v TERENCE EDWARD DOWLING T/A THE JOSEPH DOWLING PARTNERSHIP and OTHERS

[2007] BLR 151

Costs - Third party costs order - CPR Rule 48 - Section 51 Supreme Court Act 1981 - Architect - Firm - Change to company - Action started in name of individual - Counterclaim for negligence - Deliberate decision not to inform insurers - Company’s name substituted for firm’s - Judgment on counterclaim against company - Application to seek costs from firm and individual - Grounds for allowing application.

HART INVESTMENTS LTD v LARCHPARK LTD

[2007] BLR 160

Security for costs - Separate order for security for costs payable by defendant in respect of counterclaim.

MULTIPLEX CONSTRUCTION (UK) LTD v HONEYWELL CONTROL SYSTEMS LTD

[2007] BLR 167

CPR Part 52.3 - Practice Direction CPR PD52 - Application to court for permission to appeal - Time for application - Application after hearing prior to sealing judgment order.

HG CONSTRUCTION LTD v ASHWELL HOMES (EAST ANGLIA) LTD

[2007] BLR 175

Adjudication - Enforceability - Successive adjudications - LADs - Whether subsequent decision concerned the same dispute - Whether subsequent decision was binding on parties.

IAN McGLINN v WALTHAM CONTRACTORS LTD AND OTHERS

[2007] BLR 188

Costs - CPR Rule 44.3 - Split trial - First hearing on defects - Complaints against three parties - Claimant fails completely against one defendant - Successful defendant’s costs to be paid by the claimant - Principles - Need to address costs issues after judgment - No need to wait until deferred issues tried - Interim payment of costs - Method of assessment.

MULTIPLEX CONSTRUCTIONS (UK) LTD v HONEYWELL CONTROL SYSTEMS LTD

[2007] BLR 195

Time at large - Reasonable time for completion - Acts of prevention - Extension of time clause - Extensions due for acts of prevention - Compliance with issued programmes - Non-compliance with extension of time clause alleged against main contractor - Non-compliance by sub-contractor - Effect of settlement between employer and main contractor.

THE BOARD OF TRUSTEES OF THE TATE GALLERY v DUFFY CONSTRUCTION LTD

[2007] BLR 216

Employer’s insurance policy - Specified perils - Meaning of flood - Meaning of burst pipe. Employer’s obligation to effect insurance for the works. Subrogated claim - Right of insurer to sue co-insured party - Effect of co-insured’s breach of contract.

ESSEX COUNTY COUNCIL v PREMIER RECYCLING LTD

[2007] BLR 233

Arbitration - Award - Application for permission to appeal under section 69(3) Arbitration Act 1996 - “Final and binding” - Whether sufficient to exclude right to appeal. “All the circumstances” - Section 69(3)(d) Arbitration Act 1996 - “Final and binding” - Effect on consideration by court of circumstances - Whether permission to appeal should be given.

JACKSON & OTHERS v THAKRAR & OTHERS (NO 4)

[2007] BLR 241

Costs - Costs order against a non-party - Section 51, Supreme Court Act 1981 - Whether sufficient causal connection between funding by non-party and costs incurred - Whether non-party was a pure funder - Relevance of non-party’s role as director and shareholder of one of the parties - Discretion.

LEAD TECHNICAL SERVICES LTD v CMS MEDICAL LTD

[2007] BLR 251

Adjudication - Enforcement of adjudicator’s award - Jurisdiction - Summary judgment - Whether earlier agreement supplanted by deed with different adjudication provisions - Whether agreement in writing - Section 107, Housing Grants, Construction and Regeneration Act 1996.

MELVILLE DUNDAS LTD (in receivership) AND OTHERS v GEORGE WIMPEY UK LTD AND OTHERS

[2007] BLR 257

Standard JCT Form of Building Contract with Contractor’s Design (1998 edition) - Scottish with Design (Jan 2000 Edition) - Clauses 27 and 30 - Appointment of administrative receivers - Determination of contractor’s employment - Housing Grants, Construction and Regeneration Act 1996, sections 109-111 - No withholding notices - Appointment of receivers after last date for withholding notice - Whether contract terms contrary to Act.

HEWDEN TOWER CRANES LTD v WOLFFKRAN GmbH

[2007] BLR 273

Judgments Regulation - Council Regulation (EC) No 44/2001 - Jurisdiction of English court. Article 5(3) - Jurisdiction over claims relating to tort, delict and quasi-delict - Nature of claim to contribution pursuant to Civil Liability (Contribution) Act 1978. Article 23 - Exclusive jurisdiction by agreement between contracting parties - Burden of proof - Standard of proof.

JD WETHERSPOON PLC v JAY MAR ESTATES

[2007] BLR 285

Arbitration - Serious irregularity - Substantial injustice - Arbitration Act 1996 section 68(2) - Section 33 - Arbitrator using own experience - Opportunity to parties to be heard - Rent review arbitration.

OXFORD ARCHITECTS PARTNERSHIP v CHELTENHAM LADIES COLLEGE

[2007] BLR 293

Professional negligence - Causes of action against architect in contract and tort - RIBA Conditions of Engagement article 5 - Accrual of causes of action - Limitation Act 1980.

REINWOOD LTD v L BROWN & SONS LTD

[2007] BLR 305

JCT 1998 Edition with Quantities - Clauses 24, 28.1 and 31.1 - Liquidated damages - Notice of non-completion - Extension then granted - Liquidated damages repaid - Notice of default served by contractor - Later determination by contractor - Crystallisation of right to deduct.

WHITE (for and on behalf of the members of Equity Red Star Syndicate No 0218 at Lloyd’s) v (1) GREENSAND HOMES LTD BSF CONSULTING ENGINEERS LTD

[2007] BLR 313

Admission - Admission made during pre-action correspondence and repeated in pleadings - Application to amend pleading to withdraw admission - CPR 3.4(2)(b), 14.1 and 17.1(2)(b).

PEARSON EDUCATION LTD v THE CHARTER PARTNERSHIP LTD

[2007] BLR 324

Negligence - Duty of care - Causation - Damage previously caused by defective design - Whether duty of care owed or causation established. Limitation - Date of act or omission alleged to constitute negligence - Limitation Act 1980, section 14B.

SEELE AUSTRIA GMBH & CO v TOKIO MARINE EUROPE INSURANCE LTD

[2007] BLR 337

Contractors’ All Risks Policy - Rectification of defective work - Exception to exclusion of liability - Intentional damage to enable replacement, repair or rectification of defects - Requirement for unintentional damage - Divisibility of defective work and damage.

STEVE DOMSALLA (trading as Domsalla Building Services) v KENNETH DYASON

[2007] BLR 348

Adjudication - Residential occupier - Contractual adjudication regime - JCT Minor Building Works - Unfair Terms in Consumer Contracts Regulations 1999 - Whether contracting party “consumer” - Whether adjudication provisions binding or unfair - Whether withholding notice provisions binding or unfair. Insurance - Fire insurance - Reinstatement of property - Nature of relationship between insurer, policy holder and contractor in entering into contract for reinstatement.

DGT STEEL AND CLADDING LTD v CUBITT BUILDING AND INTERIORS LTD

[2007] BLR 371

Court proceedings - Adjudication provision - Mandatory or discretionary - Stay of court proceedings for adjudication - Court’s discretion to stay - Non-compliance with Pre-Action Protocol - Presumption of stay - Factors not affecting discretion - Costs of adjudication - Pre-Action Protocol - Short delay.

PIERCE DESIGN INTERNATIONAL LTD v MARK JOHNSTON AND ANOTHER

[2007] BLR 381

Housing Grants, Construction and Regeneration Act 1996 - Section 111 - JCT Standard Form Contract 1998 With Contractor’s Design - Clauses 27 and 30 - Unpaid sums due to contractor - No withholding notices - Later determination of contractor’s employment for alleged fault - Clause 27 complies with section 111 - Proviso to clause 27.6.5.1 - Reasonableness for non-payment of earlier interim payments - Stage at which reasonableness considered.

LONDON UNDERGROUND LTD v CITYLINK TELECOMMUNICATIONS LTD

[2007] BLR 391

Arbitration - Arbitration Act 1996 section 68 - Serious irregularity - Substantial injustice - Claims for delay - Interim extension of time - Critical path analysis - Global claim - Claimant’s pleading in arbitration - Whether arbitrator decided upon basis of pleading and evidence - Section 69 - Principles applicable to leave to appeal applications.

TYCO FIRE AND INTEGRATED SOLUTIONS (UK) LTD v ROLLS ROYCE MOTOR CARS LTD

[2007] BLR 419

Insurance - Joint names - Specified Perils - Flood bursting or overflowing of water tanks apparatus and pipes - Negligence of contractor - Indemnity clause against contractor’s negligence - Read terms together.

SWI LTD v P&I DATA SERVICES LTD

[2007] BLR 430

Building contracts - Lump sums - Entire contracts - Substantial performance - No terms whereby works could be varied - No implied term that lump sum prices should be reduced.

SUEN WAH LING trading as KONG LUEN CONSTRUCTION ENGINEERING COMPANY v CHINA HARBOUR ENGINEERING COMPANY

[2007] BLR 435

Arbitration - Arbitrator previously acting for one party - Bias alleged - Test for bias - Setting aside award.

J JARVIS & SONS LTD v BLUE CIRCLE DARTFORD ESTATES LTD

[2007] BLR 439

Arbitration - Jurisdiction of court to grant injunction restraining arbitration from proceeding - Conditions for exercise of that jurisdiction - Delay.

CLAYMORE SERVICES LTD v NAUTILUS PROPERTIES LTD

[2007] BLR 452

Interest - Section 35A Supreme Court Act 1981 - Period - Delay in prosecuting claim - Whether unreasonable delay - Whether claimant entitled to interest during period. Interest - Section 35A Supreme Court Act 1981 - Rate - Judgments Act 1838 - Commercial dispute - Base rate plus margin - Cost to claimant of borrowing - Appropriate margin - Whether margin of 1 per cent applicable or some higher percentage.

HANIFA DOBSON AND OTHERS v THAMES WATER UTILITIES LTD and THE WATER SERVICES REGULATION AUTHORITY

[2007] BLR 465

Nuisance - Negligence - Breach of Human Rights Act 1998 - Sewage treatment - Odours - Mosquitoes - Water Industry Act 1991, section 94 - Statutory remedy - Causes of action alongside statutory duties - Damages - Diminution in letting value - Loss of amenity - Effect of Human Rights Act remedies on damages - Limitation - Limitation Act, section 33 - Effect of group action on limitation - Discretion to extend time.

AC YULE & SON LTD v SPEEDWELL ROOFING & CLADDING LTD

[2007] BLR 499

Housing Grants, Construction and Regeneration Act 1996, Part II - Adjudication - Challenge to decision of adjudicator - Alleged failure of adjudicator to make decision within agreed extension of time - Obligation to respond to adjudicator’s request for extension of time - Acquiescence - Estoppel.

WITTMANN (UK) LTD v WILLDAV ENGINEERING SA

[2007] BLR 509

Guarantee - Effect of change in underlying contract - Rule in Holme v Brunskill - Whether guarantor must agree or communicate consent to change - Whether need for evidence in writing.

CUNDALL JOHNSON & PARTNERS LLP v WHIPPS CROSS UNIVERSITY HOSPITAL NHS TRUST

[2007] BLR 520

Pre-action protocol for Construction and Engineering Disputes - Failure of claimant to comply - Whether stay should be granted.

HART INVESTMENTS LTD v (1) TERENCE MAURICE CHARLES FIDLER (Trading as TERENCE FIDLER PARTNERSHIP) (2) LARCHPARK LTD (IN LIQUIDATION)

[2007] BLR 526

Engineer - Structural engineer - Collapse of façade of buildings - Temporary works - Design of temporary works - Design of permanent works - Risk of collapse - Duty on part of engineer to warn.

JOHN STIRLING trading as M&S CONTRACTS v WESTMINSTER PROPERTIES SCOTLAND LTD

[2007] BLR 537

Housing Grants, Construction and Regeneration Act 1996, Part II - Adjudication - Whether dispute had arisen between parties prior to Notice of Adjudication - Meaning of “dispute or difference” - Inference that dispute or difference has arisen. Contract - Correct identities of parties to contract - Effect of correspondence and application for payment by company incorporated after contract by sole trader - Ad hoc agency of company on behalf of contracting trader. Housing Grants, Construction and Regeneration Act 1996, Part II - Adjudication - No authority for company to act as ad hoc agent in serving Notice of Adjudication.

Building Law Reports