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Building Law Reports – Part 5 [2021] now published

17th Jun 2021

Part 5 of the Building Law Reports covers the following key judgments:

 

Introduction to the Building Law Reports Part 5 [2021]

The national and international Covid restrictions on lockdowns seem to be encouraging parties and their legal teams to embark on numerous procedural applications, such as summary judgment and striking out. Most of the cases reported in this volume provide some evidence of that.

Anchor Hanover Group and Others v Arcadis Consulting (UK) Ltd related to flooding of houses causing damage to buildings and contents. Flooding was said to been caused by a blocked box culvert constructed in 2012 as part of river diversion works. Amongst others, the Environment Agency (“EA”) was sued in negligence in relation to the flooding on the basis of its involvement and because the box culvert as designed and installed was not only inadequate to prevent flooding but it actively increased the risk of flooding. EA had approved the requisite drawings at the time. It sought to strike out the proceedings against it on the basis that there was no established cause of action. Mrs Justice O’Farrell in the TCC reviewed the law and, although finding that public bodies such as EA do not owe a duty of care to private individuals from simply exercising their statutory powers or duties, held that duties of care can apply in some circumstances including conduct which gives rise to an assumption of responsibility. She decided against striking out on the basis that, because the pleaded facts showed that EA had been involved in the hydraulic modelling used for the design of the river diversion works, there was an arguable case that the conduct went beyond simply exercising its statutory powers and duties.

Mrs Justice O’Farrell in the TCC in Naylor and Others v Roamquest Ltd and Another had to deal with a case arising following the Grenfell fire disaster where some leasehold owners of tower blocks in Greenwich, London sued the developer and design and build contractor. The claim was based on the NHBC Build Mark warranty scheme in circumstances where the NHBC had accepted responsibility for defective cladding, insulation and cavity barriers. However, it related to uninsured losses as well as certain additional defects which were pleaded so thinly that the judge, on the striking out application, found that the claim was “speculative and inadequately particularised”. This reflected the fact that the claim was at least in part pleaded on the basis of negative assertions that certain disclosed documents did not disclose that work had been properly carried out or that it was suspected that defects found elsewhere were replicated in the relevant tower blocks. It is a good example of the basis upon which striking out should be allowed, albeit that, here, the judge decided that the claimants should be given the opportunity to re-plead their case properly.

Denka Advantech v Seraya Energy is a very interesting case from the Singapore Court of Appeal on liquidated damages. The five-person court strongly came down in favour of applying the test of genuine pre-estimate of loss since this was consistent with the focus on the secondary obligation to pay damages that arose from the breach of contract. The long-standing authority of Dunlop was followed. The “legitimate interest” test more recently adopted by the British Supreme Court in Cavendish Square Holding BV v Talal El Makdessi; ParkingEye Ltd v Beavis (Consumers Association intervening) [2015] UKSC 67; [2016] BLR 1; [2016] 1 Lloyd’s Rep 55 was not followed, it being held that it was too general and could be applied in a wide range of ways and to wide-ranging circumstances, giving rise to the potential for uncertainty. The editors consider that it is very useful to report cases, particularly from other common law jurisdictions and the Singapore Courts are a very fruitful source, for comparative law purposes. Given the size of the e-judgment, we have edited the factual parts of the judgment for spatial reasons.

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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