Case Law Review - Construction, Property & Real Estate (May/June 2009)

ADJUDICATION

See YCMS v Grabiner under Keating

Chambers Reported Cases on exceeding slip rule by recalculation,

invalidating adjudicator's decision.

Company Voluntary Arrangement

Mead General Building Ltd v Dartmoor Properties

[2009] BLR 225 TCC

The defendant client sought to resist enforcement of an

adjudicator's decision on the ground that the claimant

contractor was subject to a CVA and so might be unable to repay

money in arbitration. The TCC held that, while a CVA was a relevant

factor to be considered, it was also relevant that the CVA was a

result of the defendant client's failure to pay the contractor

sums owed. The CVA supervisor took the view that the contractor was

a viable concern which could trade its way out of trouble, which

was also relevant. On the facts, no stay should be granted and

summary judgment was confirmed.

Construction Law Vol. 20 Issue 5 June 2009

contains the following articles:

Waiting in ambush

by Lynne McCafferty, 4 Pump Court

Countdown to natural justice

by John Sheils, Shadbolt

Adjudicator's Fees

Linnett v Halliwells LLP [2009] CILL 2704

TCC

Halliwells, the client, as respondent in an adjudication,

invited the RICS – nominated adjudicator to withdraw for

lack of jurisdiction and denied liability for his fees and

expenses. Drawing an analogy with arbitration, the court held that

a person appointed as adjudicator is entitled to fees and expenses

from the parties and the respondent was liable for the fees, even

though it objected to the adjudicator's jurisdiction. If it had

refused to participate, the position may have been different.

See The Dorchester Hotel v Vivid

Interiors under Keating Chambers Reported Cases on

timetable for adjudication in complex case.

Condition Not To Adjudicate

London Borough of Camden v Makers UK Ltd [2009]

CILL 2720 TCC

Makers had referred to adjudication a dispute which was

before the courts. Camden argued that the setting aside of a

judgment in default of its favour should be subject to a condition

that Makers would not go to adjudication. The court agreed that it

had the power to impose conditions but held that a prohibition

against adjudication was not appropriate.

Extension Of Time Limit And Cross-Claim

Letchworth Roofing Co v Stirling Building Co

[2009] CILL 2717 TCC

A 12 December referral by Letchworth was accompanied by an

indication that time would be extended to take account of the

Christmas vacation. Main contractor Stirling did not pay the sum

awarded and argued that the time limit for the decision had not

been extended. The court rejected this. Stirling also argued that

the adjudicator should have taken its cross-claim into account.

This too was rejected on the ground that a responding party cannot

take account of a cross -claim which has not been the subject of a

withholding notice.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration Law Monthly Vol.9 No.6 June/July 2009

contains the following articles:

Stay of arbitration proceedings

on Data Reclamation v Premier Waste Management

(effect of application for interim judicial relief)

Error of law

on Majorboom v National House Building Council

(Samuel Townend)

(Permission to appeal on fact)

Jurisdiction

on Michael Wilson & Partners v Emmott

(Definition of an award)

Security for an arbitration claim

on Kallang Shipping v Axa Insurance Senegal

(arrest of a vessel)

Stay of proceedings

on City of London v Sancheti

(Bilateral Investment Treaties)

Supporting the arbitration

on Sheffield United FC v West Ham United FC

(Temporary anti-suit injunctions)

Challenge To Arbitration Award

Introduction to Arbitration Law – Part 2, by

Paul Newman, 3 Paper Buildings, Construction Newsletter March/April

2009

This is the second part of a two part introductory article

on the features of arbitration law. The first dealt with the

characteristics of arbitration, what it is and is not. The second

part is concerned with opportunities for challenge to

arbitrators' awards.

Arbitration Law Monthly Vol.9 No.5 May 2009

contains the followings articles:

Appeals to the court

on ASM Shipping Ltd of India v TTMI Ltd of

England

(permission for a challenge to the award out of time)

Foreign judgments in breach of arbitration clauses

on DHL GBS (UK) v Fallimento Finmatica

(enforcement of judgment in England in breach of arbitration

clause)

Enforcement of New York Convention awards

on Dallah Real Estate and Tourism v Ministry

of Religious Affairs, Pakistan

(refusal of enforcement on jurisdictional grounds)

Consumer contracts

on Mylcrist Builders v Buck

(binding effect of an arbitration clause)

Enforcement of awards

on Nigerian National Petroleum Corporation v IPCO

Nigeria in the Court of Appeal

(partial enforcement)

See British Telecommunications v SAE

Group under Keating Chambers Reported Cases on effect

of absence of agreement for arbitration/expert determination on

jurisdiction and validity of proceedings.

Alleged Duress In Mediation

Farm Assist Ltd v Secretary of State for

Environment, Food and Rural Affairs [2009] Con LJ Vol. 25 No.4

308 TCC

This case concerns the question whether a mediator can be

called as a witness in court proceedings to give evidence of what

happened during the mediation. The dispute between the parties

concerned an allegation that a settlement was entered into under

economic duress. The settlement was entered into as a result of the

mediation. In a Case Management Conference, the parties agreed by

way of a direction that they could take witness statements from the

mediator and put questions to her about matters which would

otherwise be the subject of privilege. The mediator sought to have

the witness summons served by DEFRA set aside on the basis of the

terms of the mediation agreement, confidentiality and

privilege.

The judge held that the mediator should give evidence. Any

without prejudice privilege in the mediation proceedings existed

between the parties only and had been waived by the agreed

direction to permit witness statements from the mediator.

In respect of confidentiality of the mediation, the judge held

that there was a duty of confidentiality of information between the

parties and the mediator which could be enforced by the mediator

(in this case confidentiality was expressly provided for in the

Mediation Agreement, but the judge stated that the court would

impose it in any event). However, although the court would

generally uphold that confidentiality, it was subject to an

exception where the evidence was necessary in the interests of

justice. In this case, the allegation of economic duress concerned

what was said and done in the mediation and therefore it was in the

interests of justice for the mediator to give evidence.

Dispute Resolution In Latvia

Stripping arbitration agreements of their economic

value in the overloaded courts of Latvia

by Daimars Skutans, Spilbridge. Construction Law Journal

(2009) Vol.25 No.4 p.269

The article is a critique of Latvian arbitration law,

focussing on the refusal to enforce assigned rights under

arbitration agreements. The latest draft of Latvia's

Arbitration Act confirms this position and the author accuses the

Latvian courts of disregarding the Rome Convention. Third parties

are said to be forced into Latvia's overloaded domestic courts

by this position.

International Arbitration Law Review Vol.12 Issue 13 2009

contains the following articles:

Metropolitan Property Realizations v Atmore

Investments – serious irregularity or simply

wrong?

by Ben Holland and Adam Berry, CMS Cameron McKenna

Arbitration clauses after West Tankers: the

unanswerable conundrum? Practical solutions for enforcing

arbitration clauses

by Neville Byford and Afzalah Sarwar, Morgan Lewis &

Bockius, London

Section 44, freezing injunctions and foreign

arbitrations: limitations on jurisdiction

by Philippa Charles, Mayer Brown

CONTRACT AND PROCUREMENT LAW

Construction Law Vol.20 Issue 5 June 2009

Adornments unnecessary

by Michael Phipps, Thurston Consultants

(on JCT Pre-Construction Services Agreement)

The formalities of signing deeds – a

warning

by Jane Hughes and Amy Bradbury, Collyer Bristow

Project bank accounts

by Mike Barlow, Macroberts

see Amaryllis v HM Treasury under

Keating Chambers Reported Cases on adequacy of notice and time

limits for challenge of contract award under Public Contracts

Regulations 2006.

Letter Of Intent And Contract Formation

RTS Flexible Systems Ltd v Molkerei Alois Muller

GmbH & Co [2009] BLR 181 CA

This is the report of the appeal from the TCC's

decision. The defendant dairy manufacturer wished to retain the

claimant to supply services for automation of processes and

equipment. After providing some quotations, the claimant was

awarded the job and the defendant issued a letter of intent,

confirming its wish to proceed with the project 'as set out in

the offer' subject to finalisation of price and completion date

and using an...