Case Law Update - Issue 3 (2010)

ADJUDICATION

Construction Law Vol. 21 Issue 3 April 2010 contains the following articles:

Strong court backing for adjudication by Peter Stockill, Berrymans Lace Mawer and Michael Taylor and Daniel Goodkin, 4 Pump Court (on Anglo Swiss Holdings v Packman Lucas)

A new regime for notices by Simon Plunkett, Pinsent Masons (on the effect of the Local Democracy Economic Development and Construction Act)

Construction Law Journal Vol. 26 No. 2 2010 contains the following article:

Suspension of work by Peter Sheridan (in the Construction Act Review feature)

See Speymill Contracts v Baskind under Keating Chambers Reported Cases on evidence of fraud or deceit as grounds for resisting adjudication enforcement.

Jurisdiction and Corporate insolvency in adjudication

Enterprise Managed Services v Tony McFadden Utilities Ltd [2010] BLR 89 and [2010] Con LJ Vol. 26 No. 3 TCC Following the insolvency of Tony McFadden Ltd, by a deed of assignment drainage sub-contracts were assigned to Tony McFadden Utilities (Utilities), including one which Enterprise had acquired from the original main contractors. Utilities served a notice of referral to adjudication on Enterprise, which sought declarations that Utilities could not adjudicate. The court held that only one claim could be pursued by Utilities, namely for an account and net balance under the Insolvency Rules, because of TML's insolvency. An adjudicator could only deal with one dispute under one contract and so there was no jurisdiction to deal with several sub-contracts and the account and balance had not been referred to the adjudicator. No dispute had crystallised as Utilities had not informed Enterprise of the assignment until after the purported reference to adjudication. Coulson J observed that this is the first case since Bouygues v Dahl-Jensen (Stephen Furst QC) to consider adjudication in the light of Rule 4.90 of the Insolvency Rules. For a commentary on this case, see Construction Act Review by Peter Sheridan at p.185 of the same Con LJ issue.

Construction Law Journal 2010 Vol. 26 No. 3 contains the following articles

Insolvency Update: assignment and Rule 4.90 by Peter Sheridan (on Enterprise Managed Services v Tony McFadden Utilities)

Adjudication at the crossroads: the Construction Act – one size fits all? by Mark Atherton, Hill International

See William Hare v Shepherd Construction under Keating Chambers Reported Cases on the CA decision on the meaning of 'insolvency' as an exception to the invalidity of pay-when-paid provisions.

See O'Donnell Developments v Build Ability under Keating Chambers Reported Cases on an implied slip rule in adjudication and the time for exercising it.

Section 107(5) HGCR Act

SG South Ltd v Swan Yard (Cirencester) Ltd [2010] BLM Vol. 27 No. 4 TCC The court interpreted s.107(5) of the HGCR Act as creating a kind of "statutory estoppel" whereby the parties would not be allowed to dispute jurisdiction on the ground of lack of a written agreement once they had expressly stated in writing that they did not object to jurisdiction on that ground. See also SG South v King's Head Cirencester (Thomas Lazur), for other arguments in resisting enforcement in separate litigation.

ARBITRATION AND DISPUTE RESOLUTION

Construction Law Vol. 21 Issue 3 April 2010 contains the following articles:

A renaissance for Scottish arbitration by Shona Frame, MacRoberts (on the Arbitration (Scotland) Act 2010 which received Royal Assent 5 January 2010)

Mediation minefield by Ed Freeman, Clyde & Co

Construction Law Journal Vol. 26 No. 2 2010 contains the following articles:

'Chess clock' arbitration and time management techniques in international commercial arbitration: from the perspective of the arbitrator and counsel by Andrew Burr, Atkin Chambers and Pierre Karrer, University of Zurich

Crossing the Rubicon by Michael Reynolds, LSE

ICC Dispute Resolution Rules: ICC Dispute Boards and ICC Pre-Arbitral Referees by Suzanne Kratzsch, Thümmel, Schütze and Partners, Stuttgart

Major oil and gas projects – the real risks to EPC contractors and owners by Vincent Hooker, Hill International

CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW

Unjust enrichment

Contract and unjust enrichment: a blurry divide by Paul Davies, Gonville & Caius College, Cambridge, Law Quarterly Review Vol. 126 April 2010 p.175 This is an extended case commentary on Whittle Movers v Hollywood Express (see February 2010 issue), in which the Court of Appeal held that a letter of intent expressed to be "subject to contract" gave rise only to a potential restitutionary claim by the claimant suppliers against the defendant purchasers and not a contractual one. The decision draws upon Regalian Property v London Docklands Development Corporation (Piers Stansfield) and also Yeoman's Row Management v Cobbe in the House of Lords.

Liquidated damages and rectification

Penta-Ocean Construction Co. Ltd v CWF Piling and Civil Engineering Co. Ltd [2010] Con LJ Vol. 26 No. 2 p.131 Hong Kong SAR High Court The Hong Kong SAR Court granted leave to appeal to the main contractor against the respondent sub-contractor. The arbitrator rejected the main contractor's claim for liquidated damages on the ground that the provisions conflicted with another clause allowing deduction of common law damages from the contract price, which should prevail, and refused rectification. The judge granted leave to appeal, holding that there was no conflict, since the clause allowing deduction of common law damages only deals with the situation where the sub-contractor's breach leads to breach by the main contractor. The main contractor would also be allowed to appeal on rectification, since the letter of acceptance reflected agreement on liquidated damages in a way which the sub-contract did not.

Model Plant-hire conditions

MacSalvors Plant Hire Ltd, Brush Transformers Ltd (3rd party) [2010] TCLR Z CA The Court of Appeal considered the provisions of the Model Conditions of the Construction Plant-hire Association and specifically whether the hirer could be responsible for a claim against the owner in respect of the owner's own breach of duty. In refusing this interpretation, the CA distinguished statements in Yarm Road v Hewden Tower Cranes (Adrian Williamson QC).

Liquidated damages and force majeure

Tandrin Aviation Holdings Ltd v Aero Toy Store LLC [2010] BLM Vol. 27 No. 3 Commercial Court In this (non-construction)...