Building Law Monthly

In Higginson Securities (Developments) Ltd v Hodson [2012] EWHC 1052 (TCC), [2012] All ER (D) 151 (Apr) Mr Justice Akenhead held that potential parties to litigation embarking on the Pre-Action Protocol for Construction and Engineering Disputes must always remember to consider it in the context of the overriding objective. They must not use it as a weapon or a tactic, and they must both seek to cooperate during its implementation. Where the value of a claim is low, it is important that the parties proceed reasonably expeditiously, do not drag the process out and they must keep costs to a reasonable minimum.

In United Marine Aggregates Ltd v G M Welding & Engineering Ltd [2012] EWHC 779 (TCC), [2012] All ER (D) 81 (Apr) Mr Justice Ramsay held that, when deciding whether a defendant has exercised reasonable care, the task of the court is not to apply an absolute standard. Rather, the court must have regard to the particular circumstances of the case and the context in which the parties were operating. Conduct that is reasonable in one context may be unreasonable in another.

In Working Environments Ltd v Greencoat Construction Ltd [2012] EWHC 1039 (TCC), [2012] All ER (D) 23 (May) Mr Justice Akenhead held that it is not necessary to wait until a valuation falls due for payment before there can be a dispute about an interim valuation of work. A dispute about an interim valuation can arise immediately there is a dispute between the parties about that valuation and it can be referred to adjudication. He also held that the substance of the decision of the adjudicator could be enforced despite the fact that the adjudicator had considered two matters over which he had no jurisdiction. On the facts it was held to be possible to sever these two items and enforce the rest of the decision.

In Highlands and Islands Airports Ltd v Shetland Islands Council [2012] CSOH 12, 2012 Scot (D) 13/2 Lord Menzies held that an adjudicator had breached the principles of natural justice when he sought confirmation of his view on a point of law from senior counsel and did not inform the parties of the steps that he had taken, nor give to them an opportunity to comment on the point of law concerned. The point of law was held to be of considerable potential importance to the parties and so it could not be said that the breach of natural justice had been peripheral or irrelevant. Lord Menzies also held that it was not possible to sever and enforce the part of the award which was not affected by the breach of natural justice because the dispute which the parties had referred to adjudication was a single dispute and so had to stand or fall as a whole. Finally, Lord Menzies rejected the submission that the defendant had approbated the decision of the adjudicator and so he held that the pursuer was not entitled to enforce the decision of the adjudicator.