Building Law Reports – Part 9 [2021] now published

1st Dec 2021

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

The Royal Parks Ltd & Anor v Bluebird Boats Ltd [2021] EWHC 2278 (TCC)

The Front Door (UK) Lt (t/a Richard Reid Associates) v The Lower Mill Estate Ltd [2021] EWHC 2324 (TCC) 

Eco World – Ballymore Embassy Gardens Company Ltd v Dobler UK Ltd [2021] EWHC 2207 (TCC) 

Aviva Investors Ground Rent Group GP Ltd & Anor v Shepherd Construction Ltd [2021] EWHC 1921 (TCC)

Toppan Holdings Ltd & Anor v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC) 

Introduction to the Building Law Reports Part 9 [2021]

The TCC has been busy in August 2021 and there are five cases from the TCC reported in this Volume. In The Royal Parks Ltd and Another v Bluebird Boats Ltd, Mrs Justice O’Farrell addressed an issue as the ownership of the superstructure of a boathouse instructed as part of a concessionary licence on the Serpentine in London’s Hyde Park. The primary issue depended upon in effect whether the superstructure had become part of the land. This involved consideration of whether the superstructure could be considered to have been permanently fixed to the land only capable of removal by a process of demolition in circumstances where it was intended to form part of the land. The judge considered the contract between the parties and evidence in determining that it was. This issue comes up regularly in building and engineering contracts, including adjudication cases such as Savoye & Savoye v Spicer [2015] BLR 151.

Mrs Justice Jefford in Aviva Investors Ground Rent Group GP Ltd and Another v Shepherd Construction Ltd addressed one of the increasing number of cases relating to the consequences of the Grenfell Tower tragedy where owners of arguably comparable tower blocks seek to recover damages for replacing or repairing questionable fire protection components. The claimants had assigned to them by the employer under a building contract the rights arising, but issues arose as to whether the assignment was valid or effective. Clause 7 of the building contract prevented assignment without the consent of the contractor which had not been obtained. The assignment was accordingly invalid.

Mrs Justice O’Farrell featured in Richard Reid Associates v The Lower Mill Estate Ltd address a not uncommon issue arising from a party seeking to join a party where limitation issues arise. The judge found that, as it was reasonably arguable that some of the new claims were statute-barred, they would not be allowed. Inadequately particularised amendments were refused. Of some interest were claims for “moral rights” and passing off which were struck out as having no realistic prospect of success.

In Eco World v Ballymore Embassy Gardens Company Ltd v Dobler UK Ltd, issues relating to the proper construction and effect of liquidated damages provisions in a construction contract were considered by Mrs Justice O’Farrell. This was in circumstances that the contract permitted the Employer to take partial possession of the works in advance of practical completion with there being no mechanism for reducing the level of liquidated damages to reflect such early possession. Reference was made to the 2015 Supreme Court decision in Cavendish Square Holding BV v El Makdessi; ParkingEye Ltd v Beavis [2016] BLR 1. The judge found that the contractor was obliged to complete its work in three Blocks and that failure to complete any of its work in any of those Blocks by the Completion Date (or any extended date) would attract liquidated damages. Applying the Cavendish tests, the liquidated damages clause was not unconscionable or a penalty and was thus enforceable. This judgment a good practical application of the rules relating to penalties.

In Toppan Holdings Ltd and Another v Simply Construct (UK) LLP, the TCC, in an adjudication case, had to consider whether a collateral warranty was a “construction contact” for the purposes of the 1996 Act. Reference was made to the previous TCC decision of Parkwood v Laing O’Rourke [2013] BLR 589 on this topic, regard being had to a judicial “pointer” that a collateral warranty might not be considered as a construction contract where all the relevant works had been done by the time that the warranty was entered into. The deputy judge decided that the collateral warranty was not a construction contract because four years had elapsed since practical completion and after remedial works had been done by another contractor. Issues also arose about whether the award of VAT and interest was within the adjudicator’s jurisdiction, as well as stay on execution.

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 AkenheadDominique Rawley QCMarc Lixenberg, Omar Eljadi, David Johnson, and Felicity Dynes.

The Building Law Reports are published by Informa.

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