New cases of note and interesting first instance cases highlighted by first supplement to Hudson’s Building and Engineering Contracts (13th edition)

The first supplement to the 13th edition of Hudson’s Building and Engineering Contracts highlights several interesting new cases. Joint editor of Hudson Robert Clay commented: “While we haven’t seen any fundamental changes to the law, we have seen some interesting new cases that have restated or reemphasised important principles, and some interesting first instance cases.”

Hudson is regarded by many as the leading reference on Construction Law. The 13th edition, edited by Nicholas Dennys QC and Robert Clay, provides a comprehensive update on the law and interpretation of construction contracts and was brought up to date by a panel comprising of many of the leading practitioners at Atkin Chambers.

Cases to note include:

The decision of the Court of Appeal in Transocean Drilling UK Ltd v Providence Resources Plc, the Arctic III is an important restatement of the principle of freedom of contract in relation to exclusion clauses, reversing the trial judge’s decision refusing to give effect to an exclusion clause.

Marks and Spencer PLC v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another was an interesting Supreme Court decision in relation to implied terms. The case reemphasises the tests for the implication of a term into particular contracts — that the term must be obvious, capable of clear expression, and necessary to give business efficacy to the contract.

First instance cases include:

• The Irish case of McGee v Alcorn considering the liability of a professional for a negligent certification of the quality of the foundations.

• The UK case of Portsmouth CC v Ensign Highways Ltd where it was argued unsuccessfully that the award of service points in a PFI contract could be considered on the basis that the decision maker owed the duties normally applicable to an independent certifier administering a building contract. Related barrister: David Johnson.

• Balfour Beatty Regional Construction Ltd v Grove Developments Ltd (in which Steven Walker QC appeared) held that the provisions requiring regular instalment payments in the Housing Grants (Construction) and Regeneration Act 1996 did not, in fact, avail the contractor who contended that a right to regular interim payments would continue when the original duration of the contract expired. “The statutory regime for instalment payments is an essential part of the reforms in that Act to protect the cashflow of contractors. The first instance decision appeared to practitioners to represent a potential loophole in the statutory regime and has very recently been upheld in the Court of Appeal. At the time of writing it is not clear whether this will affect the right to instalment payments in a significant number of other cases,” commented Robert Clay.

For further information: Sweet & Maxwell website.