Construction, Property & Real Estate - Case Law Review (March 2007)

ADJUDICATION

See Quietfield v Vascroft Contractors under Keating Chambers Reported Cases on failure to consider new evidence in subsequent adjudication.

Time limits for referral

Hart Investments Ltd v Fidler [2007] 109 Con LR 67 TCC, [2007] TCLR 1 and [2007] BLR 30.

Already reported in CILL and noted in KC in Brief January 2007. The TCC held invalid a referral notice served eight, rather than seven, days after the notice of intention to refer under paragraph 7 of the Scheme for Construction Contracts. This decision departs somewhat from statements in English cases such as Barnes & Elliott v Taylor Woodrow and Simons v Aardvark (Paul Darling QC) in favour of the stricter approach to time limits of Scottish cases such as Ritchie Bros v Philp. See now also Epping Electrical v Briggs & Forrester (David Thomas QC).

Natural justice

Natural justice: further developments by Dominic Helps and Peter Sheridan, Shadbolts. Construction Law Journal [2007] Vol.23 No.1 p.46

In their regular Construction Act Review, the authors return to the subject they addressed two years ago in Construction Law Journal [2005] Vol.21 No.2. They comment extensively on Carillion Construction v Devonport Royal Dockyard (Stephen Furst QC and Louise Randall) and include fairly detailed consideration of All in One Building v Makers UK (Calum Lamont), Quietfield v Vascroft (Abdul Jinadu and Matthew Holt), Kier Regional v City & General (Adrian Williamson), Rohde Construction v Markham-David (Elizabeth Repper), the Scottish case of Ardmore Construction v Taylor Woodrow and Rankilor & Perco v Igoe.

ARBITRATION AND DISPUTE RESOLUTION

Challenges to awards

Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] CILL 2359 TCC

Already noted in CILL and noted in KC In Brief September 2006. The main significance of the case is the argument, and subsequent discussion in the judgment, of the philosophy underpinning judicial interpretation of the provisions in the Arbitration Act governing challenges to awards. The court rejected the idea of a philosophy of outright non-intervention and distinguished between s.69 challenges (as in this case) and s.68 serious irregularity challenges as in the Lesotho Highlands case. Note: the court observed that in a s.69 challenge the court should receive a copy of the award and of any document referred to in the award which would be necessary to determine the matter.

Grounds for challenge to awards

Sinclair v Woods of Winchester (No. 2) [2007] 109 Con LR 14 TCC

In earlier proceedings (2005 102 Con LR) the claimants had tried to have the arbitrator removed. Now they sought to challenge the award under s.69 Arbitration Act 1996. Leave to do so was refused because the claimants' objection to the arbitrator's finding as to faulty design of a flat roof was not a question of law and the issues of causation raised were mixed fact and law. Insofar as any questions of law were raised, they had been correctly answered by the arbitrator.

CPR Practice Direction Amendment

Ignore ADR at your cost by Michael Draper, Shadbolt & Co

Construction Law Vol.18 Issue 1 January 2007 p.32

Construction Law has just replaced its regular Adjudication monitor from Pinsent Masons with an Alternative Dispute Resolution column to be contributed by Shadbolts. The first one considers the 41st amendment to the CPR, which amends the Pre-action Protocol Practice Direction and was introduced in April 2006. It requires litigants to continue to try to sort out their differences through ADR or face the consequences in costs. The options suggested in the PD are negotiation/discussion, early neutral evaluation (including adjudication, arbitration or Expert Determination and the TCC's Court Settlement Process) and mediation.

Arbitration Law Monthly Vol.17 No.3 March 2007 contains the following articles:

Error of law (on Sea Trade Maritime Corporation v Hellenic Mutual War Risks (No.2) - incorporation of applicable law clauses)

Consumer arbitration (on Claro v Centro Movil Milenium in the ECJ - right of consumer to challenge an arbitration award)

Enforcement of arbitration (on Svenska Petroleum v Republic of Lithuania - enforcement against a state)

International Arbitration Law Review Vol.10 Issue 1 February 2007 contains the following articles:

The recent 'reform' of the Italian Civil Procedure Chapter on Arbitration

by Monique Sasson, Italian Bar

Remedies against awards in international arbitration: setting aside of awards under Italian law

by Cecilia Carrara, Macchidi Cellere Gangemi, Rome

The Indian Arbitration Law: towards a new jurisprudence

by Sumeet Kachwaha, Kachwaha and Partners

The influence of the new law on Arbitration agreements and arbitrato irrituale

by Domenico di Pietro, Mayer Brown Rowe & Maw, London

Global Arbitration Review Vol.2 Issue 1 February 2007 contains the following articles:

Canada's arbitration practices - rated

2006 in retrospect by Loukas Mistelis, Queen Mary College, London reviews arbitration in the last year

English Act's 10th anniversary by Sarita Woolhouse provides detailed statistics on reported cases under the Act

The Chorzow approach rejuvenated?

by Manuel Abdala, James Nicholson and Pablo Spiller, University of California at Berkeley ALIGN on compensation under bilateral investment treaties

Fiona Trust v Privalov:

by Laurence Shore and Iain Maxwell, Herbert Smith

on validity of arbitration agreements where fraud is alleged

Options for change in the annulment process

by Claudia Salmon (New York) and Kate Knox (London), DLA Piper on the ICSID procedure for challenge to awards

Statistics from arbitral institutes for 2006 provides detailed statistics on arbitrations from AAA, Vienna, Cairo, Germany, Hong Kong, ICSID, Singapore, LCIA, Stockholm and Switzerland.

s.69 Challenge

Chattan Developments Ltd v Reigill Civil Engineering Contractors Ltd [2007] All ER (D) 155 TCC

A first arbitrator having found that an agreement for a residential development incorporated the terms of JCT 80, including the LAD provisions, a second arbitrator held that the parties had shown intention that no unliquidated damages should be claimable in addition. The claimant client sought to challenge the second arbitrator's award under s.69 Arbitration Act on a point of law but it was held, rejecting the challenge, that the second arbitrator had made relevant findings of fact and applied correct principles of law, so it could not be said that the award was unlawful.

Stay of execution on overpayment refused

G Middleton Ltd v Berry Creek Overseas Development Ltd [2007] All ER (D) 358 TCC

The defendant client sought a stay of execution on arbitration awards in favour of its contractor arguing that the arbitrator's basis of calculation had been incorrect and that it was entitled to a separate refund. The court, applying Wimbledon Construction v Vago (Simon Hughes) refused the stay, holding that the arbitrator's methods could not be analysed on an application for a stay and that an alleged entitlement to a refund should not ground a stay of enforcement on the balance of convenience.

CONSTRUCTION AND ENGINEERING CONTRACT LAW

Construction Law Vol.18 Issue 2 March 2007 contains the following articles:

Partnering demands contract integration

by David Mosey, Trowers & Hamlins (on PPC 2000 partnering contract).

Sectionalised contract better late than never

by Michael Phipps, Thurston Consultants (on JCT 2005)

Review of the year 2006

by Simon...