Case Law Review - Construction, Property & Real Estate (July/August 2009)

ADJUDICATION

Construction Law Journal 2009 Vol. 25 No. 5

contains the following articles:

Weather warning: adjudication hot-house meets depression

Precipitation expected

by Alexander Hickey, 4 Pump Court

(on recent adjudication enforcement decisions featuring

Cantillon v Urvasco, Quartzelec v

Honeywell (Fionnuala McCredie),

CJP Builders v William Verry, Air Design v

Deerglen (Gaynor Chambers),

Euro Construction Scaffolding v SLLB

(Jessica Stephens), Vitpol Building

Services v Samen, Walter Lilly v DMW, Dorchester Hotel v Vivid

Interiors (Paul Buckingham), Kier

Regional v City and General (Adam

Constable)

Severability of adjudicators' decisions

revisited

by Peter Sheridan and Dominic Helps, Shadbolt

attacking the view of Sean Brannigan QC on Cantillon v

Urvasco citing Bovis Lend Lease v London

Clinic (Finola O'Farrell QC) and

AMEC v Whitefriars (David Thomas

QC, Stephen Furst QC, Jane Lemon).

See North Midland Construction v AE&E

Lentjes under Keating Chambers Reported Cases on the

"broad" and narrow" approaches to s.105 HGCR Act on

exclusion of activities relating to power generation.

See Primus Build v Pompey Centre under

Keating Chambers Reported Cases on service of Notice and excess of

jurisdiction by adjudicator.

See The Dorchester Hotel v Vivid

Interiors under Keating Chambers Reported Cases on

timetable for adjudication in complex case.

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.

Oral Contract And Interest

Allen Wilson Joinery Ltd v Privetgrange Construction

Ltd [2009] 123 Con LR 1 TCC

Already reported in TCLR, a sub-contractor failed to

obtain summary judgment to enforce an adjudicator's decision,

since the court could not summarily resolve the issues as to

whether there was an oral agreement for the design which would not

comply with s.107 HGCR Act. Following Carillion

Construction v Devonport Royal Dockyard

(Stephen Furst QC and Louise Randall), the

adjudicator had no power to award interest.

Construction Law Vol. 20 Issue 6 July 2009

contains the following articles:

Finances no ground for stay of execution

by Emmanuel Ninos and William Cooper, Shadbolt

Preparing for a nuclear fallout?

by Emelita Robbins, Herbert Smith

(on the HGCR Act nuclear exemption)

The error of omission

by John Sheils, Shadbolt

See Quartzelec v Honeywell Control

Systems under Keating Reported Chambers Cases on an

adjudicator's failure to take into account a defence

raised.

Adjudicator's Fees And Acceptance

Linnett v Halliwells LLP [2009] BLR 312 and 123

Con LR 104 TCC

Halliwells, the client 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. Its silence and letter had

not been accepted, but its request to the adjudicator to make a

non-binding decision gave rise to a contract.

See YCMS v Grabiner under Keating

Chambers Reported Cases on exceeding slip rule by recalculation,

invalidating adjudicator's decision.

No Written Contract

Adonis Construction v O'Keefe Soil

Remediation [2009] EWHC 2047 TCC LAWTEL

The fact that the sub-contractor had never signed the order for

works and that the draft order did not amount to an offer meant

that there was no written contract for the purposes of the HGCR Act

1996 and thus no jurisdiction for the adjudicator. The letter of

intent from the main contractor, Adonis, had been followed by a

draft order to soil remediation sub-contractor O'Keefe, but the

draft order stated that the official order would be issued

subsequently. It could not therefore be part of a written contract,

since it lacked the necessary intention to be an offer.

Summary Judgment Resisted

Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2108

TCC LAWTEL

Multifit sought summary judgment to enforce an

adjudicator's award in its favour. Estor successfully submitted

that it was arguable that there was no contract between Estor and

Multifit, on the basis that Estor was owned and run by an

individual and that Multifit had dealt with that person. If this

was correct, the adjudicator would have no jurisdiction, so summary

judgment should not be granted.

Novation Challenge Fails

Camillin Denny Architects Ltd v Adelaide Jones &

Co. Ltd [2009] EWHC 2110 TCC LAWTEL

The applicant architects sought summary judgment enforcing

an adjudicator's decision in their favour against the

respondent project managers. The respondents argued that a novation

had taken place so that there was no contract between the parties.

However, the court held that the project managers could not have

been replaced by a party which was never incorporated and never in

a position to place or enter into contracts. Therefore the novation

argument could not succeed and summary judgment should be

granted.

See Workspace Management v YJL London

under Keating Chambers Reported Cases on enforceability of

adjudicator's finding of overpayment as a set-off against an

arbitration award.

ARBITRATION AND DISPUTE RESOLUTION

Arbitration Vol. 75 No. 3 August 2009

contains the following articles:

Islamic finance: potential implications for dispute

resolution

by Aisha Nader, Queen Mary, London

The influence of Sharia norms of dispute settlement and

international law: the International Court of Justice, room for

accommodation?

by Ayla Karmali, Salam Advocates, Dubai

The anti-suit injunction: historical overview

by David Altaras, 36 Bedford Row

After West Tankers – rise of the

'foreign torpedo'?

by Stuart Dutson, Eversheds, London and Mark Howarth,

Eversheds, Leeds

Spare the rod and spoil the party: how procedurally

robust should a tribunal be?

by Mark Beeley and Sarah Stockley, Vinson & Elkins,

London

Emergent international attitudes towards bribery,

corruption and money laundering

by Kenneth Beale, Wilmer Cutler, London and Paolo

Esposito, Studio Legale Esposito, Naples

Rent review arbitrators: legal challenges to awards and

how to avoid them

by Stephen Bickford Smith, Landmark Chambers

Enforcement of foreign awards in China: judicial

attitudes

by Fei Lan Fang, Three Gorges University, Yichang

Mediation developments in civil and commercial matters

within the European Union

by Ann Brady, Rougemont Chambers, Exeter

The US model for international class action

arbitration

by Grant Hannessian and Christopher Chinn, Baker &

McKenzie, New York

Incorporation by reference of the arbitration clause:

recent Lebanese practice in a comparative context

by Marwan Sakr, Hennaoui & Sakr

Global Arbitration Review 2009 Vol. 4 Issue

3

contains the following article:

The essentials of stabilisation clauses

by David Moss, Lovells

CONTRACT AND PROCUREMENT LAW

Letter Of Intent And Contract Formation

RTS Flexible Systems Ltd v Molkerei Alois Muller

GmbH & Co [2009] 123 Con LR 130 CA

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

was already reported in BLR. 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 amended version of the MF/1 form of

contract, to be executed within four weeks. Work started as

negotiations proceeded and the letter of intent was extended for

three months. A final draft contract was produced but never signed,

leading the claimant to commence proceedings. The TCC had held

that, after the lapse of the letter of intent, the parties had

reached full agreement on the obligations relating to the work. The

CA held that MF/1 could not become operative until signed and thus

no contract had been concluded after the letter of intent lapsed.

The appeal was allowed.

Construction Law Vol. 20 Issue 6 July 2009

contains the following articles:

What is reasonable?

by Michael Phipps, Thurston Consultants (on JCT

Pre-Construction Services Agreement 2008)

Demystifying the NEC3 Contract

by Ron Plascow, Mills & Reeve

Slaying some liquidated damages myths

by Hamish Lal, Dundas & Wilson

Shared risk and reward the key to partnering

by Martin Hirst, Bovis Lend Lease

Indemnity limits – what do they really

mean?

by John D. Wright, JD Associates

Construction Law Vol. 20 Issue 7 August/September

2009

contains the following articles:

Always check for meaning

by Michael Phipps, Thurston Consultants

(on JCT Project Bank Accounts and Pre-Construction Services

Agreement)

Is completion practically understood?

by Hamish Lal, Dundas & Wilson

(on meaning of practical completion)

FIDIC goes for Gold

by Khalid Ramzan, Pinsent Masons

(on DBO Contract 2008)

Defects and damage – extent of insurance

cover

by John D. Wright, JD Risk Associates

NHS Lift and EU procurement rules

by Sarah Pengelly, MacRoberts

Public Contracts Regulations Breach

McLaughlin & Harvey Ltd v Department of Finance

and Personnel

[2009] 122 Con LR 157 (No. 1) N. Ireland QBD

169

(No. 2)

194

(No. 3)

Contractors McLaughlin & Harvey were aggrieved at not

being included in a Northern Ireland Government framework

agreement. They sought to challenge the decision. In (No. 1) they

unsuccessfully applied for an injunction to prevent the award...