Building Law Reports – Part 6 [2020] now published

28th Jul 2020

Part 6 of the Building Law Reports covers the following key judgments:

Introduction to the Building Law Reports Part 6 [2020]

In this issue we report four first instances decisions, one of which is from the new Judge in Charge of the Technology and Construction Court O’Farrell J, together with one from Hong Kong.

As with Part 5, this issue is being prepared during the Covid-19 lockdown. In Municipio de Mariana v BHP Group plc [2020] EWHC 928 (TCC), a decision of HHJ Eyre QC sitting in the Business and Property Courts, he considered the approach of courts to applications during the Covid-19 crisis. This is a very large class action in respect of pollution in Brazil, with some (but not all) of the defendants being Brazilian and jurisdictional issues pending. The hearing of these was to have been in June 2020, but now will take place in July. Doubtless further decisions in this litigation will be reported in subsequent issues of the BLR.

In A v B [2020] EWHC 809 (TCC), a decision of O’Farrell J, she gave an anonymised judgment following a private hearing in which a claimant sought an injunction to prevent the defendants from acting for a third party as experts, in an ICC arbitration between that third party and the claimant. The judgment contains an interesting analysis of expert duties, conflicts and fiduciary duties of loyalty. The claimant was the developer of a petrochemical plant, and the defendants had provided expert services to the claimant in respect of it. The defendants had signed confidentiality agreements in this respect. They sought to provide expert services to the third party in respect both of delay and quantum. The judgment found that the defendant group owed a fiduciary duty of loyalty to the claimant and an interim injunction was continued preventing them from acting.

Hall v Sanders Law Ltd is a decision of a Deputy High Court Judge on the interesting question of the duties owed by solicitors conducting litigation, not to their clients for whom they are acting, but to those who provide the litigation funding. Since the demise of civil legal aid, the only way that those who cannot afford legal fees can bring their claims to court is by the use of litigation funding. The claim arose in the context of pessimistic advice provided to the funders by solicitors acting in the litigation. Certain aspects of the judgment are fact specific but in terms of the general scope of duties owed by solicitors in these circumstances, there is an interesting analysis of principle. The Deputy High Court Judge struck out the claim.

The final first instance decision is Dowman Imports Ltd v 2 Toobz Ltd [2020] EWHC 291 (Comm), a decision of HHJ Russen QC sitting as a judge of the Commercial Court in Bristol, which concerns restitution and services provided in anticipation of a contract. The case contains an interesting summary of the principles and authorities in respect of restitution in particular.

Finally, we report a decision from Hong Kong concerning a call on a bond, namely West Kowloon Cultural District Authority v AIG Insurance Hong Kong Ltd, a decision of the High Court of Hong Kong SAR Court of First Instance. This was a decision of the Hon Ng J, and the claim on the bond was for the very sizeable sum of HK$297,198,000. The judgment found for the claimant (still called the plaintiff in that jurisdiction), granted summary judgment and dismissed the defendant’s applications to strike out the action on the basis that the demands were not valid demands.

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 AkenheadChantal-Aimée Doerries QCDominique Rawley QCMarc Lixenberg, Omar Eljadi and Felicity Dynes.

The Building Law Reports are published by Informa.


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