Building Law Reports – Part 9 [2020] now published

20th Nov 2020

Part 9 of the Building Law Reports covers the following key judgments:

Introduction to the Building Law Reports Part 9 [2020]

In this issue we report four TCC cases and one from the Commercial Court.

The first case to appear is Lane End Developments Construction Ltd v Kingsgate Civil Engineering Ltd [2020] EWHC 2338 (TCC). In this case the referring party in an adjudication had, in breach of paragraph 2(1) of the Scheme for Construction Contracts, failed to give notice of its intention to refer a dispute to adjudication prior to seeking the appointment of an adjudicator. Following the judgment of Christopher Clarke J (as he then was) in Vision Homes v Lancsville Construction Ltd [2009] BLR 525, the judge determined that this meant that the adjudicator had not been validly appointed. Although presented with arguments that the responding party had waived its right to rely on the defect in the adjudicator’s appointment, the judge concluded that it was not a case in which waiver came into play as the responding party was not presented with a relevant choice from which it could elect to cede a right. The request to the nominating body could not take effect as an appointment in the adjudication as at the point in time at which it was made there was no adjudication. The judge further determined that no case on estoppel could be sustained on the facts. The adjudicator was not properly appointed in the adjudication and the Decision was not enforceable.

In the case of Hart and Hart v Large and Others [2020] EWHC 2159 (TCC) the TCC considered the court’s discretion to order a stay of execution pending an appeal. The judge ordered a partial stay of execution of the judgment debt to allow the appellant access to funds for legal representation for its appeal. The appeal related to a limited point of law and so the justice of the case required, according to the judge, that the appellant be allowed legal representation at his appeal. However, the stay of execution was limited to the “minimum required”, namely the estimated cost of instructing direct access counsel.

WRW Construction Ltd v Datblygau Davies Developments Ltd [2020] EWHC 1965 (TCC) concerned an attempt to persuade the court not to make an order for payment in circumstances where the adjudicator had been asked to value a final account following termination and had determined that it was the responding party to the adjudication, not the referring party, who was out of pocket. It was common ground that the adjudicator did not have jurisdiction to make an order for payment by the referring party to the responding party. The defendant argued that in the absence of an order for payment from the adjudicator, the claimant had to refer a further dispute to adjudication in order to obtain an order for payment from an adjudicator for the court to enforce. The court, however, dismissed this argument, satisfied that there was no reasonably arguable defence to the claim for payment and that it would be contrary to principle and established authority for the court to effectively force a party to commence a further adjudication (to which there is no defence) to obtain an order for payment. Further, the court made short shrift of arguments that there should be a stay of execution.

Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC) was the final hearing in an adjudication claim in which it was in dispute whether the primary activity on the site of the works was or was not power generation. O’Farrell J considered the contractual provisions, existing authority and factual evidence in determining that power generation (and not waste treatment) was the primary activity on site and not merely an ancillary activity on a waste to energy plant in Hull. Accordingly, the statutory carve outs to construction adjudication in section 105(2) of the Housing Grants, Construction and Regeneration Act 1996 (as amended) applied and an adjudicator’s awards relating to the claimant’s works were not enforceable as the adjudicator lacked the requisite jurisdiction to make them.

Finally, this issue includes the case of Jiangsu Guoxin Corporation Ltd v Precious Shipping Public Co Ltd [2020] EWHC 1030 (Comm), in which Butcher J dismissed two appeals brought under section 69 of the Arbitration Act 1996. The appeals concerned a tribunal’s partial awards in respect of whether or not time could be set “at large” under the relevant shipbuilding contracts by the alleged unlawful rejection of a number of bulk carriers which was said to have resulted in the occupation of berths in the ship yard and prevented the timely completion of further bulk carriers. The judge reviewed the authorities on the “prevention principle” but determined that the contracts included a complete code of the circumstances in which the Seller was entitled to an extension of time and the prevention principle did not come into play.

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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