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Building Law Reports – Part 4 [2020] now published

20th May 2020

Part 4 of the Building Law Reports covers the following key judgments:

A copy of the Introduction is reprinted below.

 

Introduction to the Building Law Reports Part 4 [2020]

Jalla and Others v Royal Dutch Shell plc and Others is another case brought in the English courts (the TCC in particular) about oil pollution affecting the Delta region of Nigeria with many thousands of individual claimants and numerous communities being the claimants. Often, if not invariably, these types of proceedings are started relatively late in the limitation scheme of things. They are costly and take a very substantial amount of case management by the court. Limitation loomed large in relation to amendments being sought by the claimants relating to the substance of the case as well as the substitution of one existing defendant with another corporately related party. There were hearings totalling five days. The judge had to address the basic principles as well as forming views on the evidence presented as to whether there had been a mistake in the naming of the defendant to be substituted (answered in the negative), as to when for many of the claimants limitation began to run in nuisance and negligence, whether there should be a stay of the English proceedings whilst related Nigerian proceedings were pursued, whether new evidence should be admitted, whether there had been deliberate concealment (answered in the negative) and whether there had been estoppel by convention affecting limitation (answered in the negative). The judgment is a very useful one as it sets out the principles to be adopted for each of the commonly arising topics addressed.

The TCC considered the distinctions between different types of bonds and guarantees in Yuanda (UK) Company Ltd v Multiplex Construction Europe Ltd. A Guarantee had been secured by a sub-contractor for the benefit of a main contractor and, when the latter had threatened to “call” that in as if it was an on-demand bond, the subcontractor obtained an injunction preventing the call going ahead. The trial was concerned with the nature of the Guarantee. The Guarantee, the judge held, was in the nature of a “conditional” bond as the wording in the Guarantee related to the need to “satisfy and discharge the damages sustained by the Contractor as established and ascertained pursuant to and in accordance with the provisions of all by reference to the Contract and taking into account all sums due or to become due to the sub-contractor”. The most interesting aspect of the judgment were the judge’s findings as to whether, when and if an adjudication decision was secured in favour of the Main Contractor, it could in effect claim under the Guarantee, the judge finding that this would satisfy the terms of the Guarantee.

Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd was another TCC case, this time from Manchester in which the defendant applied, pre-trial, for an order excluding expert evidence on the basis that the experts could not be described as sufficiently independent or otherwise qualified to give evidence about what was in their reports. The court clearly has jurisdiction to make such an order and at that stage of the proceedings. The judge reviewed all the evidence relating to the conduct of the experts as to whether they had seriously breached the obligations imposed upon Part 35 experts. He rejected the application. It is clear that a fairly high bar is set to such applications, not least because it is still open for the credibility and independence of experts to be challenged in the substantive hearing.

We are only publishing three cases in this volume due to the length of the Jalla 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 Akenhead, Chantal-Aimée Doerries QC, Dominique Rawley QC, Marc Lixenberg, Omar Eljadi and Felicity Dynes.

The Building Law Reports are published by Informa.





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