Part 3 of the Building Law Reports covers the following key judgments:
- Lejonvarn v Burgess and Another [2020] EWCA Civ 114
- John Innes Foundation Earlham Institute and Others v Vertiv Infrastructure Ltd [2020] EWHC 19 (TCC)
- MPB v LGK [2020] EWHC 90 (TCC)
- Goldman and Others v Zurich Insurance plc and Another [2020] EWHC 192 (TCC)
- Hochtief (UK) Construction Ltd and Another v Atkins Ltd [2019] EWHC 3028 (TCC)
- Field Systems v MW High Tech [2020] CSOH 17
A copy of the Introduction is reprinted below.
Introduction to the Building Law Reports Part 3 [2020]
The Court of Appeal in Lejonvarn v Burgess and Another may have put to bed long running litigation between domestic parties who sued for negligence an architect friend who voluntarily assisted them in major landscaping works in their garden. After first instance and appeal decisions, it was finally decided that there were no breaches of any duty of care and the case was dismissed, leaving only the vexatious issue as to costs for which the first instance judge had decided that the friend should have her costs only on a standard basis. The Court of Appeal decided that the case was sufficiently weak and speculative such that indemnity costs should be ordered. Consideration was given to whether or not account should be taken of Part 36 offers made by the friend and the court held that it should be as a further justification for indemnity costs. There was also consideration of the fact that the friend’s approved cost budget was exceeded by over £300,000, the Court of Appeal’s view being that in principle it was not material.
Duties of care were considered by the TCC in John Innes Foundation Earlham Institute and Others v Vertiv Infrastructure Ltd which was a fi re case where the freeholder and tenants sued the defendant, a maintenance company, in negligence for failing to make visits such that batteries which needed replacing were not replaced and the subsequent fire was said to have occurred as a result. Unfortunately for the claimants there was no contractual link between them and the maintenance company which had been retained by another company set up by some but not all of the claimants to handle maintenance matters. On the striking out application, the deputy judge reviewed the authorities and found that, although physical damage caused by the fi re was reasonably foreseeable, there had been no “assumption of responsibility” by the defendant. There was a particular concentration on the facts that the “sin” (if sin there was) was one of omission rather than commission on the part of the defendant).
In MPB v LGK, the TCC was concerned with an application under section 67 of the Arbitration 1996 to set aside an award on the jurisdictional grounds that there was no arbitration agreement. There was in one sense a battle of the forms leading to the contract in question and the arbitrator proceeded on the basis that LGK’s terms were incorporated such that there was an arbitration agreement. That was a view that the deputy judge agreed with so there was no effective jurisdictional challenge to the award. An interesting part of the judgment was obiter and addressed whether the fact that the parties had proceeded to a number of construction adjudications during the course of the project led to an “approbation and reprobation” such that MPB could not assert any more that the dispute resolution clause within LGK’s terms which also included the arbitration agreement was not applicable. She decided that MPB had elected to follow and comply with that dispute resolution clause.
Goldman and Others v Zurich Insurance plc and Another was a TCC case involving considerations of abuse of process in a claim against insurers where there had already been one trial relating to new home building warranty insurance policies. In that trial, the claimants succeeded under those policies, but liability was capped at purchase price of the flats in question; a claim for deceit was allowed in practice but causation was not established. The new proceedings were not struck out, regard being had to cases such as Johnson v Gore Wood and Henderson v Henderson. There is a useful analysis of the cases and practical applicability particularly where deceit is raised.
In Hochtief (UK) Construction Ltd and Another v Atkins Ltd, the TCC Judge (O’Farrell J) gave judgment in respect of the cost consequences of a prior judgment in the claimants’ favour. The claimants had beaten their Part 36 offer by a small amount and the court held that it would not be unjust to apply the provisions of CPR 36.17 – subject to a percentage reduction arising from a discrete claim upon which the claimants were unsuccessful.
The Scottish Court of Session in Field Systems v MW High Tech addresses a number of interesting adjudication issues arising out of whether the adjudicator had failed to exhaust his jurisdiction and, if so, whether his decision was severable in relation to issues unaffected by any such failure. The judge held that it was incumbent upon the party asserting such a failure to show that there was such a failure and that party has not established it. Although the adjudicator had not given reasons, such failure was not material so far as the overall result was concerned. Any failure on the part of the adjudicator to address argument was inadvertent. The judge observed that, if he was wrong about that, it only went to small elements of the decision which could be severed and the rest of the decision enforced.
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 Akenhead, Chantal-Aimée Doerries QC, Dominique Rawley QC, Marc Lixenberg and Omar Eljadi
