Case Law Review - Construction, Property & Real Estate (February 2009)

ADJUDICATION

See Balfour Beatty Construction Northern v Modus

Corovest under Keating Chambers Reported Cases on

enforcement of adjudication and attempts to set-off a

cross-claim.

See Air Design (Kent) v Deerglen

(Jersey) under Keating Chambers Reported Cases on an

adjudicator's jurisdiction to decide how many contracts the

parties had made.

See Avoncroft Construction v Sharba

Homes under Keating Chambers Reported Cases on

contractual defence to liquidated damages based on partial

possession, set-off and validity of withholding notice.

See Euro Construction Scaffolding v SLLB

Construction under Keating Chambers Reported Cases on

adjudicator's jurisdiction to decide on his jurisdiction.

Electronic Communication Of Decision

CSC Braehead Leisure Ltd v Laing O-Rourke Scotland

Ltd [2009] BLR 49 Court of Session Outer House

The Scottish Court upheld as valid the transmission by e-mail of

an adjudicator's decision within the extended time limit

granted to him, even though there was no signature. Difficulty was

created by the adjudicator's expression of the decision as

'interim', a practice criticised by the BLR Editors, but

the court held that it was, properly construed, not an interim

decision, because it decided liability and addressed quantum.

See Dalkia Energy & Technical Services v Bell

Group under Keating Chambers Reported Cases on

jurisdiction to rule on incorporation of standard terms in Part 8

proceedings.

ARBITRATION AND DISPUTE RESOLUTION

Multi-Tier Dispute Resolution

Ardentia Ltd v British Telecommunications plc

[2008] 119 Con LR 50 Ch. Div.

This is on IT, rather than construction, but is of interest as

"one of the few decisions concerning dispute resolution

escalation clauses" as the Con LR editors describe it. It

arose from a software licensing dispute. The agreement contained

dispute resolution provisions with escalating stages from (i)

notice in writing of a dispute (ii) meeting of representatives

(iii) meeting at CEO level and (iv) consideration of mediation.

However, there was an exception allowing the parties to seek

interim injunctions. The court held that such an application would

not entitle the court to deal with the substantive issues and

Ardentia could not give a notice of intention to commence

proceedings until the escalating states had been exhausted.

See Taylor Woodrow v RMD Kwikform

under Keating Chambers Reported Cases on whether arbitration has

been validly commenced by a letter from the claimant.

Arbitration Clause Unfair

Mylcrist Builders Ltd v Buck [2008] BLM Vol. 26

No. 1 TCC

Already reported in BLR, the builders' standard terms of

contract contained an arbitration clause and they proposed to refer

a payment dispute to arbitration. The client, an individual

owner-occupier, succeeded in her argument (appearing in person)

that the clause was unfair pursuant to the Unfair Terms in Consumer

Contracts Regulations 1999. The builders failed in their argument

that they had achieved a valid appointment of an arbitrator under

s.17 Arbitration Act when the other party refused to appoint; this

was held only to apply to parties each appointing an arbitrator and

not to a sole arbitrator.

Public Policy Challenge Fails

R v V [2008] 119 Con LR 73 Commercial

Court

In an arbitration arising from an agreement for the provision of

consultancy services in the Libyan oil industry, the arbitrators

gave an award in favour of V, the claimant. It was an ICC

arbitration in London under English law. The defendant sought to

challenge the award under s.68 of the Arbitration Act and under

s.81(1)(c) as contrary to public policy. Following

Lesotho Highlands Development Authority v

Impregilo, the court held that s.68 could not be used

to circumvent the restrictions on the court's power of

intervention, while s.81 was not applicable, since the agreement

was neither contrary to the Libyan Penal Code nor to English public

policy.

No Costs For Invalid Arbitration

Crest Nicholson (Eastern) Ltd v Western [2008]

119 Con LR 18 TCC

Already reported in BLR, in a dispute over the NHBC Buildmark

scheme, the court held that an arbitrator who had heard submissions

from both parties had no jurisdiction, because there was no

arbitration clause in the Buildmark policy. On the question as to

whether the court could award costs for an invalid arbitration, it

was held that there was no clear statutory power to do so and so

the court could not make such an award.

See Cubitt Building & Interiors v Richardson

Roofing (Industrial) under Keating Chambers Reported

Cases on refusal of stay of arbitration pending adjudication.

Journal of International Arbitration Vol. 25 No. 6

December 2008

Is a special issue celebrating the 50th anniversary

of the New York Convention on the Recognition and Enforcement of

Foreign Arbitral Awards. It contains articles on the United States,

Canada, Europe, Central Asia, Asia, Nigeria and Australia/ New

Zealand.

Recent Research

Dame Hazel Genn of UCL, in her December 2008 Hamlyn Lecture,

criticises tendencies to ignore 'justice' in promotion of

mediation: "just about settlement rather than about just

settlement." and accuses ADR professionals of greater interest

in large-scale commercial disputes.

University of Westminster report on Direct Access, finds a 89%

satisfaction rating among clients directly instructing

barristers.

The Bar is organising promotional events to get this message

across and encourage use of Public Access to the Bar.

Construction Law Vol 20 Issue 1 January 2009

contains the following articles:

Insurers, subrogation and costs

by Bevan Farmer, Shadbolt & Co.

Quick on the draw by Paul Newman, 3 Paper

Buildings (on pre-action protocol compliance)

Of Johnny Halliday and chocolate teapots

by John Sheils, Shadbolt & Co. (on CEDR

mediation/adjudication process)

CONTRACT AND PROCUREMENT LAW

International Construction Law Review Vol. 26 No. 1

January 2009

contains the following articles:

The four criteria of risk allocation in construction

contracts

by Nael Bunni

Relationship between FIDIC Conditions and public

procurement law – reliability of tender documents

by Götz-Sebastian Hök, Hök, Stieglmeier

& Collegen, Berlin

OGC Contracts Of Choice

JCT News Release 2 January 2009

The JCT has announced that the review by Arup concluded in late

2008 for the Office of Government Commerce (OGC) has found that

three contract forms now satisfy the principles of the OGC

Achieving Excellence in Construction. As well as NEC 3, identified

in 2005 as OGC contract of choice, the JCT Constructing Excellence

Contract (JCT-CE) and the ACA's PPC 2000 (given a 2008

're-launch') do so. The Arup review noted expressly that

"Each contract (of the 3) satisfies OGC's Evaluation

Criteria". These relate to encouragement of collaborative

working, good management, performance and dispute resolution.

See Diamond Build v Clapham Park Homes

under Keating Chambers Reported Cases on the contractual effect of

a letter of intent.

Use Of Sub-Criteria And Marking Unlawful

Letting International Ltd v London Borough of

Newham [2008] 119 Con LR 89 QBD

NB that the claimant is reported elsewhere as

'Lettings'.

Lettings, the unsuccessful tenderers for two framework

agreements covering procurement, maintenance and management of

dwellings for Newham, succeeded in their challenge of the tendering

and award process. After first obtaining an injunction (upheld at

[2007] EWCA Civ. 1522) to stop the award, at the trial they

established breach of the Public Contracts Regulations 2006 by

Newham. Newham had failed adequately to disclose its award criteria

and weightings in advance and specifically had used sub-criteria

which were not disclosed, and which were not mere scoring

machinery, as Newham tried to contend. Newham had also failed to be

transparent in its scoring, offering only three out of five for

fully meeting a criterion and reserving the remaining two marks for

those who exceeded it. Some, although not all, of...