Building Law Reports – Part 3 [2021] now published

4th May 2021

Part 3 of the Building Law Reports covers the following key judgments:

Introduction to the Building Law Reports Part 3 [2021]

The expert business has become worldwide with large firms offering all types of expert witness service and with firms taking over others. The chances of conflicts arising are obvious. The Court of Appeal in Secretariat Consulting Pte Ltd and Others v A Company examined issues relating to a fiduciary duty of loyalty and conflicts of interest. This was in circumstances where one delay expert from one Secretariat company was retained by the Company in question for an arbitration on a particular project followed by which another quantum expert from another Secretariat company was retained by another party on another arbitration against the Company in connection with the same project in which there were clearly overlapping issues relating to delay and disruption. The court examined whether there was a fiduciary duty of loyalty by experts but did not have to find that there was one because there was a clear contractual warranty given on behalf of all the Secretariat companies in the first arbitration that no conflicts would arise. There being such a clear conflict, the injunction preventing Secretariat from deploying the second expert was effectively continued. This case will have significant ramifications for companies in the expert provision business.

Large v Hart and Another is another Court of Appeal decision which involved a negligent survey case and the issue arose on the appeal as to what the proper basis of damages assessment is in such cases. These cases arise when a client buying a property relies upon a negligent survey, purchases the property, paying significantly more than the property was actually worth. The court accepted the longstanding authorities of Philips v Ward and Watts v Morrow which establish that capital diminution is usually the proper basis of evaluating damages. However, the surveyor had negligently failed to record in his report that a PCC should be obtained; a PCC is a Professional Consultancy Certificate used where a property being purchased does not have the benefit of a NHBC scheme, but has been built under the supervision of an architect or other construction professional. This led to the court deciding that the measure of damages recoverable, although still classifiable as a diminution in value, took into account the fact that the house had to be demolished and rebuilt as a result of the efficiencies overlooked.

TRW Ltd v Panasonic Industry Europe GmbH and Another is a TCC case involving conflict of laws issues, in particular as to what court in which country had jurisdiction and as to the impact of the Recast Brussels I Regulations (which, primarily, provide that jurisdiction is to reflect the agreement between the parties). The claimant had signed a customer file document with the defendant relating generally to the supply of the automotive parts by which it agreed that the German courts have jurisdiction and German law would apply. However, later the claimant ordered parts on its own order form which identified in effect that the English courts would have jurisdiction. Mr Justice Kerr held that effectively the customer file document signed by the claimant trumped the terms of the order, particularly in circumstances where there had not been a written acceptance by the defendant that the customer file terms should be inapplicable.

The Court of Appeal in AIC Ltd v The Federal Airports Authority of Nigeria considered the relatively unusual circumstances in which the court may reconsider an order pronounced in open court prior to the order being sealed. The threshold test before an invitation by one of the parties is that there must be “a sufficiently compelling reason that may justify reconsideration” of the order to reconsider that such an order may be entertained. The court should instinctively be looking for something that has been missed or otherwise gone awry: a mistake or a fundamental misapprehension or a fundamental piece of evidence or a point of law that was overlooked. The court’s undoubted jurisdiction to reconsider its earlier order cannot be permitted to become a gateway for a second round of wide-ranging debate. The judge at first instance had reconsidered the order but on a ground that was effectively not sufficiently compelling.

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, Dominique Rawley QCMarc Lixenberg, Omar Eljadi, David Johnson, and Felicity Dynes.

The Building Law Reports are published by Informa.

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