Building Law Monthly

In Barr v Biffa Waste Services Ltd [2012] EWCA Civ 312, [2012] All ER (D) 141 (Mar) the Court of Appeal allowed the claimants’ appeal from the decision of Mr Justice Coulson (on which see our December 2011/January 2012 issue pp11-12). In doing so, the Court of Appeal affirmed that the case should have been decided in accordance with orthodox legal principles which have long governed the law of nuisance. Given the errors of law made by Coulson J, it was not possible for the Court of Appeal to draw any final conclusion from his analysis of the individual claims and so the case was remitted to ‘an appropriate forum to complete that assessment’. This conclusion is an unfortunate one in so far as it will require the parties to incur still further costs in the resolution of their dispute. However, the Court of Appeal expressed the hope that the parties might be able to bring the proceedings to a close ‘as speedily and economically as possible’, possibly by way of mediation.

The Court of Appeal in Samarenko v Dawn Hill House Ltd [2011] EWCA Civ 1445, [2012] 2 All ER 476 held that, in the case of a contract for the sale of land, the obligation of the purchaser to pay a deposit by a particular time will generally be a term of fundamental importance to the contract so that any breach will entitle the vendor to treat the contract as at an end. However, the same cannot be said of a failure to comply with a time of the essence notice. Where such a notice is served following the breach of an innominate term or a warranty a failure to comply with the notice will not, of itself, amount to a repudiatory breach of contract.

In Jet2.com Ltd v Blackpool Airport Ltd [2012] EWCA Civ 417, [2012] All ER (D) 24 (Apr) the Court of Appeal dismissed an appeal from the decision of Judge Mackie (on which see our October 2011 issue, pp11-12) and, in doing so, considered the nature of the obligation that is assumed by a party who agrees to use best endeavours. In relation to the enforceability of such an obligation, it was held that it should usually be held to be enforceable unless the object intended to be procured by the endeavours is too vague to be itself a matter of legal obligation or the parties have provided no criteria on the basis of which it is possible to assess whether best endeavours have been, or can be, used. In relation to the extent of the obligation that is assumed, it operates to qualify the pursuit of self-interest and the extent to which it permits a party to have regard to its own financial interests will depend very much on the nature and terms of the contract in question.

In Baht v Masshouse Developments Ltd [2012] All ER (D) 168 (Mar) Mr George Bompas QC, sitting as a Deputy Judge of the High Court, held that the defendant developers had committed a repudiatory breach of contract in failing to arrange for a development to be completed ‘with all due diligence’ and that the claimant purchasers of apartments in the development were, as a consequence, entitled to recover the deposits which they had paid for the properties in question. On the facts he concluded that this was not a case of ‘mere delay’ in the completion of the works but was a case in which the defendant, by its failure to take forward the project during 2009, had signalled an intention on its part not to be bound by the contracts.