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Save changes

Building Law Reports – Part 10 [2021] now published

9th Dec 2021

Part 10 of the Building Law Reports covers the following key judgments:

Introduction to the Building Law Reports Part 10 [2021]

The Court of Appeal in John Doyle Construction Ltd v Erith Contractors Ltd considered aspects of the Supreme Court decision in Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd. The case was mainly concerned with the adequacy of the security offered by the appellant (a company in liquidation) in an adjudication enforcement case. However, perhaps the greater importance of this appeal decision lies in the obiter dicta of both Coulson and Lewison LJJ, which addressed the wider question of whether a company in liquidation could ever be entitled to summary judgment enforcing payment of a sum set out in an adjudicator’s decision. By virtue of the automatic operation of insolvency set-off, the answer appears to be “no”. This is of some real importance and may well discourage liquidators from pursuing enforcement of adjudication decisions which they have obtained in their favour.

In Jalla and Another v Shell International Trading and Shipping Co Ltd and Another, the Court of Appeal, on another TCC appeal, had to consider the basis on which representative proceedings could be brought on behalf of 28,000 individuals and communities for “remediation relief” arising from an oil spill in December 2011 from an offshore oil facility. CPR r 19.6(1) provides that representative proceedings can be brought on behalf of other parties who or which have the “same interest”. The reason for this requirement is that all the parties “represented” will be bound by the result. It must be the same interest or it must be “in effect the same cause of action or liability”. Membership of the represented class must be capable of being ascertained at the outset of the proceedings. The Court of Appeal upheld the first instance decision in finding that these proceedings could not be, properly, representative. It was, instead, in effect, 28,000 different individual claims. Instead of representative proceedings, it might well have been more effectively proceeded as Group Litigation which falls into a different category.

The Birmingham TCC had to address what used to be a common issue, namely, the extent to which a dispute referred to adjudication covered more than one dispute. Quadro Services Ltd v Creagh Concrete Products Ltd was a case in which a contractor had submitted, in relation to one project, interim applications for payment in three months which were effectively cumulative in total but none of which had been paid. The contractor referred to adjudication its claim for the cumulative total to be met by a jurisdictional challenge that, in effect, there were three separate disputes relating to each sum claimed as outstanding on each of the three invoices. The court, applying the principles set out in the earlier TCC decision of Whitney Town Council Council v Beam Construction (Cheltenham) Ltd, stated that, on analysis, it was a single dispute being referred and the adjudicator in awarding the full sum had acted within jurisdiction.

On the BLR Plus series (which can be found at http://www.i-law.com) we cover the following cases. In CC Construction Ltd v Mincione, the TCC considered the question of whether the Employer’s final statement under clause 4.12.6 of the applicable JCT Design and Build Contract (2011 Edition) form was to be considered as conclusive. Following the submission of the Employer’s final statement, the conclusive effect does not come into play if the Employer (or the Contractor) gives notice “disputing anything” in that statement. Although there were other issues in the case, the judge accepted that, in relation to the Employer’s letter of 18 December 2020, said to be the requisite notice, the test was how “it would have been understood in the particular circumstances by a reasonable recipient aware of the surrounding facts” in the context of it being a clause 4.12.6 notice.

In an adjudication context, the TCC had to consider in Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd whether the adjudicator had failed to address a line of defence asserted by the Employer as well as an issue as to whether an Employer’s payment notice satisfied the statutory and contractual requirements. The judge found that the adjudicator had failed to address a relevant defence which was put forward by the Employer and in respect of which he had jurisdiction. Because no part of the adjudicator’s decision could be said to have considered that, his decision was unenforceable. There is a relevant and helpful review of the authorities on these issues in this case.

About the Building Law Reports

Edited by members and former members of Atkin Chambers, the Building Law Reports are essential reading for legal professionals, construction industry professionals, law libraries and universities. Each report provides expert commentary on key judgments from the editors, including the substance of a case and its implications on past and future decisions.

Described as “the most established and authoritative construction law reports available”, they provide comprehensive coverage from the Technology and Construction Court, Court of Appeal, Supreme Court and other relevant jurisdictions worldwide, including Hong Kong, Australia and Singapore.

Consulting Editor: The Honourable Mr Justice Fraser

General Editors: Sir Robert AkenheadDominique Rawley QCMarc Lixenberg, Omar Eljadi, David Johnson, and Felicity Dynes.

The Building Law Reports are published by Informa.