Part 2 of the Building Law Reports covers the following key judgments:
- RUSHBOND PLC v THE JS DESIGN PARTNERSHIP LLP
- CDE v NOP
- NAYLOR AND OTHERS v ROAMQUEST LTD AND ANOTHER
- FAIRGROVE HOMES LTD v MONUMENT TWO LTD
Introduction to the Building Law Reports Part 2 
The scope of duties of care in construction-type claims was addressed by the Court of Appeal in Rushbond Plc v the JS Design Partnership LLP. The case related to damage to the appellant’s disused cinema property, caused by an intruder who allegedly gained access as a result of alleged negligence of the respondent. It involved allegations of tortious “omissions” on the part of the respondent’s architect who, visiting the premises for about an hour, allegedly left the entrance door unlocked, it then being alleged that the intruder entered and started a fire. The case was struck out at first instance. The Court of Appeal reversed that decision. “Pure” omissions do not attract liability unless there is an assumption of responsibility by the alleged omitting party or that party carelessly causes or permits that danger to arise. Coulson LJ held that it was an untenable proposition that the architect in question did not owe a duty of care to the claimant to take reasonable precautions as to security.
The Court of Appeal in CDE v NOP addressed the tension between the general requirement that all court hearings should be in public and the agreed confidentiality applicable to arbitrations in general and to arbitration awards in particular. The case involved an arbitration award against a company whose directors or shareholders were sued by the successful arbitration claimant in the Commercial Court on the basis that they were in effect bound by the award or that it would be an abuse of process for them to assert that they were not so bound. Although CPR 62.10 states that CPR 39.2, which requires as a matter of generality that all court hearings to be in public (subject to exceptions), was not applicable, the first instance judge had ruled that the Case Management Conference should be heard in private because the award and some extent its contents would need to be referred to. The judge’s decision was in substance upheld on appeal with the first instance judge being left to decide whether the later substantive hearing should be in private.
Naylor and Others v Roamquest Ltd and Another involved consideration by the TCC of an application to amend Particulars of Claim to overcome arguments that had been mounted by the defendants in support of an earlier strike out application. The judgment shows the extent to which challenges to amendments should not be made. For instance, challenges that are dependent on which side’s expert is right will not prevent permission to amend being given, although amendments which have no real prospect of success will be refused.
Many cases that have settled involve the use of what has for many years been called a Tomlin Order which, apart from recording the terms of the settlement, leaves the court with a residual discretion to enforce the agreed terms. In Fairgrove Homes Ltd v Monument Two Ltd the background was an adjudication decision which the claimant had sought to enforce. Enforcement proceedings were settled on the basis of the Tomlin Order involving payment of an amount in into an escrow account, the amount to be paid out to the claimant unless within four months the other party had commenced Part 8 proceedings challenging the substantive basis of the adjudicator’s decision. The court exercised its supervisory jurisdiction in relation to the Tomlin order, applying orthodox principles of interpretation, determining that the defendant had not commenced the specified Part 8 proceedings within the 120 days such that the amount in question should be paid.
On the BLR Plus series (which can be found at http://www.i-law.com) we cover Access for Living v London Borough of Lewisham, a public procurement case in the TCC which is now the main court in which such cases are brought. It involved an issue as to whether the unsuccessful tenderer’s proceedings had been issued within the 30 days when it “first knew or ought to have known that grounds for starting the proceedings had arisen”. Previous TCC decisions (Mermec and Cityprint) had set the basis upon which applications for extension of this 30-day period will be allowed, the regulations requiring that there has to be a “good reason”. There was here no good reason. The fact that only a short extension was required was not relevant. The fact that the applicant had misunderstood what started time running was not a good reason. The merits of the underlying challenge will usually, at least, be irrelevant to any extension application.
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