Building Law Reports – Part 8 [2020] now published

20th Oct 2020

Part 8 of the Building Law Reports covers the following key judgments:

Introduction to the Building Law Reports Part 8 [2020]

There are four TCC cases to report in this volume which shows that the TCC is managing a significant amount of court business during this difficult time for the world.

In Empyreal Energy Ltd v Daylighting Power Ltd , Mr Justice Stuart-Smith had to consider the enforceability of an expert determination in a solar farm engineering contract. Expert determination has been around for many years, but it is becoming more popular in engineering contracts, in particular where there are specialised issues which might arise. Unless the expert determination arrangement applies to all disputes, care has to be taken in the drafting of those clauses which give rise to expert determination. In this case, the expert determination was said to be unenforceable because the referral was insufficiently clear and unambiguous as to whether the disputed claim fell within the contract clause pursuant to which it was being presented. It was also unenforceable because the actual determination went critically beyond what the underlying clause allowed.

Mr Justice Pepperall in Nazirali Sharif Tejani v Fitzroy Place Residential Ltd underlined the importance of parties pleading their cases properly. There has been a tendency, perhaps brought on by a more lax approach in arbitrations, in court cases for parties to plead their cases at unnecessary length and with sometimes copious reference to evidence. This was a case in which one side sought to strike out the other’s statement of Claim on the basis that it did not identify or even set out the evidence upon which it relied. It has long been said for court cases that a party needs to plead the material facts on which its cause of action or defence is based. It is not necessary and indeed it is undesirable to set out how that party is going to prove those facts. The judge here refused to strike out those parts of the statement of claim complained about. There is a strong move within the Business and Property Courts (including the TCC) to ensure that pleadings are in accordance with the Rules.

In Kew Holdings Ltd v Donald Insall Associates Ltd , Mrs Justice O’Farrell had to address an application on the part of a party, which had secured and enforced an adjudication decision in its favour, to strike out an action started in court by the other party to secure substantive rights, which, if successful, would have in practice set aside the adjudication decision. Although the adjudication decision had been enforced, the sum due had not been paid although charging orders and the like had been obtained. Although striking out the court action was considered too draconian, the court ordered the claimant (which are had not yet actually paid out on the adjudication decision) to provide substantial security for costs of the proceedings, pending which the action was stayed. There was a hint in the judgment that, if the security of costs was not paid, more draconian steps could be taken by the court on application.

Rushbond plc v The JS Design Partnership LLP was a fi re case brought in negligence by the owner of the property in question against architects who had visited the premises but had, allegedly, left the door unlocked so that later intruders came in and started a fi re. The defendant sought to strike out the action against it on the basis that there was no duty of care owed and therefore no actionable negligence. Mrs Justice O’Farrell reviewed the authorities, in particular those relating to simple omission (as applied here), where the harm was not caused by the defendant but by a third party unconnected with the defendant. She found that there was on the assumed facts no assumption of responsibility by the defendant to the claimant and, therefore, the case was struck out. There is a good review of the relevant authorities by her.

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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