ADJUDICATION
See YCMS v Grabiner under Keating Chambers Reported Cases on exceeding slip rule by recalculation, invalidating adjudicator's decision.
Company Voluntary Arrangement
Mead General Building Ltd v Dartmoor Properties [2009] BLR 225 TCC
The defendant client sought to resist enforcement of an adjudicator's decision on the ground that the claimant contractor was subject to a CVA and so might be unable to repay money in arbitration. The TCC held that, while a CVA was a relevant factor to be considered, it was also relevant that the CVA was a result of the defendant client's failure to pay the contractor sums owed. The CVA supervisor took the view that the contractor was a viable concern which could trade its way out of trouble, which was also relevant. On the facts, no stay should be granted and summary judgment was confirmed.
Construction Law Vol. 20 Issue 5 June 2009
contains the following articles:
Waiting in ambush
by Lynne McCafferty, 4 Pump Court
Countdown to natural justice
by John Sheils, Shadbolt
Adjudicator's Fees
Linnett v Halliwells LLP [2009] CILL 2704
TCC
Halliwells, the client, as respondent in an adjudication,
invited the RICS – nominated adjudicator to withdraw for
lack of jurisdiction and denied liability for his fees and
expenses. Drawing an analogy with arbitration, the court held that
a person appointed as adjudicator is entitled to fees and expenses
from the parties and the respondent was liable for the fees, even
though it objected to the adjudicator's jurisdiction. If it had
refused to participate, the position may have been different.
See The Dorchester Hotel v Vivid Interiors under Keating Chambers Reported Cases on timetable for adjudication in complex case.
Condition Not To Adjudicate
London Borough of Camden v Makers UK Ltd [2009]
CILL 2720 TCC
Makers had referred to adjudication a dispute which was
before the courts. Camden argued that the setting aside of a
judgment in default of its favour should be subject to a condition
that Makers would not go to adjudication. The court agreed that it
had the power to impose conditions but held that a prohibition
against adjudication was not appropriate.
Extension Of Time Limit And Cross-Claim
Letchworth Roofing Co v Stirling Building Co
[2009] CILL 2717 TCC
A 12 December referral by Letchworth was accompanied by an
indication that time would be extended to take account of the
Christmas vacation. Main contractor Stirling did not pay the sum
awarded and argued that the time limit for the decision had not
been extended. The court rejected this. Stirling also argued that
the adjudicator should have taken its cross-claim into account.
This too was rejected on the ground that a responding party cannot
take account of a cross -claim which has not been the subject of a
withholding notice.
ARBITRATION AND DISPUTE RESOLUTION
Arbitration Law Monthly Vol.9 No.6 June/July 2009
contains the following articles:
Stay of arbitration proceedings
on Data Reclamation v Premier Waste Management
(effect of application for interim judicial relief)
Error of law
on Majorboom v National House Building Council
(Samuel Townend)
(Permission to appeal on fact)
Jurisdiction
on Michael Wilson & Partners v Emmott
(Definition of an award)
Security for an arbitration claim
on Kallang Shipping v Axa Insurance Senegal
(arrest of a vessel)
Stay of proceedings
on City of London v Sancheti
(Bilateral Investment Treaties)
Supporting the arbitration
on Sheffield United FC v West Ham United FC
(Temporary anti-suit injunctions)
Challenge To Arbitration Award
Introduction to Arbitration Law – Part 2, by
Paul Newman, 3 Paper Buildings, Construction Newsletter March/April
2009
This is the second part of a two part introductory article
on the features of arbitration law. The first dealt with the
characteristics of arbitration, what it is and is not. The second
part is concerned with opportunities for challenge to
arbitrators' awards.
Arbitration Law Monthly Vol.9 No.5 May 2009
contains the followings articles:
Appeals to the court
on ASM Shipping Ltd of India v TTMI Ltd of
England
(permission for a challenge to the award out of time)
Foreign judgments in breach of arbitration clauses
on DHL GBS (UK) v Fallimento Finmatica
(enforcement of judgment in England in breach of arbitration
clause)
Enforcement of New York Convention awards
on Dallah Real Estate and Tourism v Ministry
of Religious Affairs, Pakistan
(refusal of enforcement on jurisdictional grounds)
Consumer contracts
on Mylcrist Builders v Buck
(binding effect of an arbitration clause)
Enforcement of awards
on Nigerian National Petroleum Corporation v IPCO
Nigeria in the Court of Appeal
(partial enforcement)
See British Telecommunications v SAE Group under Keating Chambers Reported Cases on effect of absence of agreement for arbitration/expert determination on jurisdiction and validity of proceedings.
Alleged Duress In Mediation
Farm Assist Ltd v Secretary of State for
Environment, Food and Rural Affairs [2009] Con LJ Vol. 25 No.4
308 TCC
This case concerns the question whether a mediator can be
called as a witness in court proceedings to give evidence of what
happened during the mediation. The dispute between the parties
concerned an allegation that a settlement was entered into under
economic duress. The settlement was entered into as a result of the
mediation. In a Case Management Conference, the parties agreed by
way of a direction that they could take witness statements from the
mediator and put questions to her about matters which would
otherwise be the subject of privilege. The mediator sought to have
the witness summons served by DEFRA set aside on the basis of the
terms of the mediation agreement, confidentiality and
privilege.
The judge held that the mediator should give evidence. Any without prejudice privilege in the mediation proceedings existed between the parties only and had been waived by the agreed direction to permit witness statements from the mediator.
In respect of confidentiality of the mediation, the judge held that there was a duty of confidentiality of information between the parties and the mediator which could be enforced by the mediator (in this case confidentiality was expressly provided for in the Mediation Agreement, but the judge stated that the court would impose it in any event). However, although the court would generally uphold that confidentiality, it was subject to an exception where the evidence was necessary in the interests of justice. In this case, the allegation of economic duress concerned what was said and done in the mediation and therefore it was in the interests of justice for the mediator to give evidence.
Dispute Resolution In Latvia
Stripping arbitration agreements of their economic
value in the overloaded courts of Latvia
by Daimars Skutans, Spilbridge. Construction Law Journal
(2009) Vol.25 No.4 p.269
The article is a critique of Latvian arbitration law,
focussing on the refusal to enforce assigned rights under
arbitration agreements. The latest draft of Latvia's
Arbitration Act confirms this position and the author accuses the
Latvian courts of disregarding the Rome Convention. Third parties
are said to be forced into Latvia's overloaded domestic courts
by this position.
International Arbitration Law Review Vol.12 Issue 13 2009
contains the following articles:
Metropolitan Property Realizations v Atmore
Investments – serious irregularity or simply
wrong?
by Ben Holland and Adam Berry, CMS Cameron McKenna
Arbitration clauses after West Tankers: the
unanswerable conundrum? Practical solutions for enforcing
arbitration clauses
by Neville Byford and Afzalah Sarwar, Morgan Lewis &
Bockius, London
Section 44, freezing injunctions and foreign
arbitrations: limitations on jurisdiction
by Philippa Charles, Mayer Brown
CONTRACT AND PROCUREMENT LAW
Construction Law Vol.20 Issue 5 June 2009
Adornments unnecessary
by Michael Phipps, Thurston Consultants
(on JCT Pre-Construction Services Agreement)
The formalities of signing deeds – a
warning
by Jane Hughes and Amy Bradbury, Collyer Bristow
Project bank accounts
by Mike Barlow, Macroberts
see Amaryllis v HM Treasury under Keating Chambers Reported Cases on adequacy of notice and time limits for challenge of contract award under Public Contracts Regulations 2006.
Letter Of Intent And Contract Formation
RTS Flexible Systems Ltd v Molkerei Alois Muller
GmbH & Co [2009] BLR 181 CA
This is the report of the appeal from the TCC's
decision. The defendant dairy manufacturer wished to retain the
claimant to supply services for automation of processes and
equipment. After providing some quotations, the claimant was
awarded the job and the defendant issued a letter of intent,
confirming its wish to proceed with the project 'as set out in
the offer' subject to finalisation of price and completion date
and using an amended version of the MF/1 form of contract, to be
executed within four weeks. Work started as negotiations proceeded
and the letter of intent was extended for three months. A final
draft contract was produced but never signed, leading the claimant
to commence proceedings. The TCC had held that, after the lapse of
the letter of intent, the parties had reached full agreement on the
obligations relating to the work. The CA held that MF/1 could not
become operative until signed and thus no contract had been
concluded after the letter of intent lapsed. The appeal was
allowed.
Contractor's Challenge Fails
JB Leadbitter & Co Ltd v Devon County
Council [2009] CILL 2713 Ch Div.
The claimant contractor failed in its contention that its
tender, under a four year framework agreement, had been wrongly
excluded from consideration by the Council. The claimant had
submitted its tender within the extended deadline but omitted the
requisite case studies. It tried to send these later but failed to
get them in until after the deadline. The claimant alleged that the
Council had acted in breach of its duty to be proportionate. The
court held that it had done so in rejecting a tender which was
significantly non-compliant.
International Construction Law Review July 2009 Vol.26 Part 3
contains the following articles:
Shifting sands in the economy and international
procurement market
by Nick Henchie, Mayer Brown, London
Principles of European Law: service contracts
by Prof Monika Chao-Duivis, Delft University of
Technology
Long-term equipment and material procurement and supply
contracts for mining and infrastructure projects in Australia
– an overview of commercial and legal issues
by Andrew Chew, Mallesons Stephen Jaques, Sydney
PSSCOC and causes of construction delay in Singapore and
four selected ASEAN countries
by Sui Pheng Low, Jun Ying Lui and Imy Tan, National
University of Singapore
Choice of law: a happy ending?
by Philip Britton, King's College, London
Arbitration and mediation in Hong Kong: a new era
by David Bateson, Mallesons Stephen Jaques, Hong Kong
Transparency, award criteria and framework agreements in
public procurement: a review of recent case law
by Adrian Brown and Miranda Ramphul, Herbert Smith
The Local Democracy Economic Development and
Construction Bill 2008
by Brian Mason and Martin Bridgewater, Herbert Smith
Construction Newsletter May/June 2009
contains the following articles:
Listed buildings – myths and risks
by Isabel Diver, Foot Anstey
Are collaborative working techniques recession
proof?
by Katie Graham, Stephenson Harwood
Public Procurement Law Review 2009 Part 4
contains the following articles:
Burden of proof in interim proceedings
by Zsofia Varga, Orrick, Frankfurt
Greece breaches Community Law by excluding tenders to
supply medical devices bearing the CE markings, without applying
the safeguard procedure laid down in Directive 93/42
by Adrian Brown, Herbert Smith LLP
The European Defence Agency Capability Development Plan
and European Armaments Cooperation Strategy
by Baudouin Heuninckx, University of Nottingham
Swedish exemption granted for some services within the
Postal Sector, Czech Exemption refused for production of
electricity
by Rhodri Williams, Henderson Chambers
Judicial review, public procurement and the
establishment of an Academy: a note on Chandler v Camden Borough
Council; Chandler v Secretary of State for Children, Schools and
Families
by S.H. Bailey,. University of Nottingham
Challenge to termination of a procurement
competition
by Patrick McGovern, Arthur Cox
Standstill notice in respect of Part B services: the
decision in Federal Security Services Ltd v Chief Constable of the
Police Service of Northern Ireland and Resource Group Limited
By Patrick McGovern, Arthur Cox
Chandler v Camden Borough Council; Chandler v Secretary
of State for Children, Schools and Families
by Paul Henty, Shadbolt LLP
The Procurement Law Academic Network
by Sue Arrowsmith , University of Nottingham
Remedies for breaches of procurement rules and the
UNCITRAL Model Law on Procurement
by Caroline Nicholas, UNCITRAL
Development promotion as a secondary policy in pubic
procurement
by Rolf H. Weber, University of Zurich
Ineffectiveness – the new deterrent: will the
new Remedies Directive ensure greater compliance with the
substantive procurement rules in the classical sectors?
by Michael-James Clifton
The new Defence Procurement Directive
by Tim Briggs, Herbert Smith LLP
Public Procurement Law Review 2009 Part 3
contains the following articles:
The distinction between selection and award criteria in
EC public procurement law – rule without exception?
by Steen Treumer, Copenhagen Business School
Selection and award criteria from a German public
procurement law perspective
by Anne Rubach-Larsen, White & Case, Hamburg
Selection and award criteria in Italian public
procurement law
by Mario E Comba, University of Torino
Selection and award criteria in Belgian procurement
law
by William Timmermans and Tim Bruyninckx, Brussels Bar
Superiority in experience and skills may distinguish a
better tender bid! Critical reflections from Norway on the Lianakis
ruling
by Kai Kruger, Law Faculty of Bergen, Norway
The distinction between selection and award criteria in
EC public procurement law: the Danish approach
by Laurence Folliott-Lalliott, University Paris-Quest
Nantierre – La Defense
Application of the "Teckal" exemption to a
services concession contract: Coditel Brabant SA v Commune
d'Uccle, Region de Bruxelles-Capitale (C-324/07):
by Totis Kotsonis, Norton Rose
Exclusion of bidders on grounds of holding media
interests: Michaniki AE v Ethniko Simvoulio Radiotileorasis and
Ipourgos Epikratias (C-213/07)
by David McGowan, Maclay Murray & Spens LLP
Mininum selection criteria and their application during
the evaluation process: Sogelma Srl v European Agency for
Reconstruction (EAR) (T-411/06)
by Elisabetta Piselli
Recourse to the accelerated procurement procedure
by Rhodri Williams, Henderson Chambers
Issues for public procurements resulting from
instability in global financial markets
by Sally Roe and James Dickinson, Freshfields Bruckhaus
Derringer LLP
Greek jurisprudence: Lianakis v Dimos Alexandroupolis,
No. 1794/2008 of the Council of State (Simvoulion tis
Epikrateias)
Aris Georgopoulos, University of Nottingham
Fighting corruption in public procurement through the
OECD: a review of recent initiatives
by Sope Williams, University of Nottingham and Ama Eyo,
Derbyshire Constabulary
Remedies for breach of procurement law in the context of
framework agreements: Henry Bros (Magherafelt) Ltd, FB McKee &
Co Ltd v Department for Education for Northern Ireland (No.3
– Remedies)
by Patrick McGovern, Arthur Cox
The legality of the time limits for challenge in the UK
public procurement regulations: a reference to the ECJ
by Paul Henty, Shadbolt LLP
Note on Chinese Taipei's GPA accession
Ping Wang, University of Nottingham
CONSTRUCTION AND ENGINEERING CONTRACT DISPUTES LAW
Frustration
CTI Group Inc v Transclear SA [2009] BLM Vol.26
No.6 CA
The Court of Appeal affirmed that the doctrine of
frustration operates within very narrow limits and that the courts
remain reluctant to allow it to be used to enable a party to escape
from an agreement which works out badly. The BLM Editors emphasise
the necessity of a properly drafted force majeure clause for a
party which wishes to regulate its liability, given this
confirmation that frustration will rarely be available.
Termination And Repudiation
Stocznia Gdynia SA v Gearbulk Holdings Ltd
[2009] BLR 196 and [2009] CILL 2708 CA
The (ship-building) case concerned interpretation of the
termination clauses and whether it prevented the client, who had
terminated the contract, from recovering its deposit and damages
for losses sustained. The Court of Appeal dismissed the appeal by
Stocznia Gdynia (the Yard) against the judge's finding that
Gearbulk was entitled to reclaim its deposit and claim damages. The
Yard had argued that the termination clause was part of a
contractual code which excluded all common law rights, but it was
held that it would require very clear words to convert a
termination clause into an exclusive remedies clause. There was
also considerable discussion of what constitutes repudiation and
when a breach is sufficiently serious to go to the root of a
contract.
Construction Law Vol.20 Issue 5 June 2009
contains the following articles:
Termination due to employer insolvency
by Zac Spyrou, Pinsent Masons
Sensible defects clause construction
by Ann Levin and Michael Mendelblat, Herbert Smith
Notification nightmares
by John D Wright, JD Risk Associates
(on professional indemnity insurance)
No Re-Opening Of Invoices
Furmans Electrical Contractors v Elecref Ltd
[2009] TCLR 6 CA
In a dispute concerning overpayment of a sub-contractor,
the CA held that paid invoices should not be re-opened, since they
had been paid after checking by site supervisors. The question was
what was a reasonable sum for the sub-contractor to receive on its
outstanding unpaid invoices.
GENERAL AND PROFESSIONAL NEGLIGENCE
Solicitors' Negligence
Levicom International Holdings v Linklaters
[2009] EWHC 812 (Commercial Court)
The defendant solicitors had been negligent in failing
properly to convey their advice to their clients, leading them to
form a more optimistic view of the solicitors' assessment of
the position than was the case. This was so even though the
solicitors' assessment of the case was not negligent. However,
only nominal damages were awarded, as the claimants could not prove
they would have acted differently with different advice.
Defective Premises Act
Bole v Huntsbuild Ltd [2009] CILL 2697
(TCC)
Damage to a property caused by inadequate foundation depth
following removal of trees on the site constituted a breach of the
Defective Premises Act 1972. On the facts, the foundation depth did
not conform to NHBC standards and the movement and cracking were
sufficient to render the house unfit for human habitation. Both
contractor and consultant were in breach of the Act. While noting
that unfitness for habitation is a matter of fact in each case, the
court noted that s.604(1) of the Housing Act 1985 provides a useful
checklist of the kind of defects which might be sufficiently
fundamental. Catlin Estates v Carter Jonas (Adrian
Williamson QC and Piers Stansfield) was considered on
limitation and not followed (both cases were heard by the same
judge).
See Brookfield Construction (UK) v Foster and Partners under Keating Chambers Reported Cases on the duty of a professional consultant to provide assistance.
Basement Design
Watertight basements by John Wasilewski, Capita Symonds,
(2009) Construction Law Journal Vol.25 No.4 p.274
This is a detailed consideration of the responsibilities
of architects, structural engineers and to some extent builders in
ensuring that below-ground structures are watertight. The article
distinguishes between the concepts of 'watertight' and
'damp-proof' and explains water pressure and resistance.
Reference is made to CIRIA guidance, Eurocode and British
Standards, notably the British Standard Code of Practice for
protection of structures against water from the ground. There is
also material on tanking and materials, including concrete. Case
law is mentioned, but only in passing.
Negligence In Partnership
Tann v Herrington [2009] PNLR 22
The defendant surveyor, the senior of two partners, was
held to be unable to recover a share of liability for a negligence
claim, which was settled, from his former partner, the claimant
architect. The defendant had not informed insurers until two years
after the claim, thus losing indemnity, and the claimant only heard
of it when he was notified of the settlement by the defendant. The
claimant was entitled to a share of the enhanced value of property
assets following dissolution of the partnership but the
defendant's negligence in handling the claim deprived him of
any right to seek a contribution to the settlement from his former
partner.
PRACTICE AND PROCEDURE
TCC Guide Only Gives Guidance
Vitpol Building Service v Michael Samen [2009]
Con LJ Vol.25 No.4 319 TCC
The TCC was asked to decide as a point of principle
whether it has jurisdiction to decide a dispute as to the existence
and/or terms of a contract, where the answer would determine
whether or not the claimant could go on to adjudication in
circumstances where no adjudication was commenced, but where the
pre-action protocol process was complete. The judge had to decide
whether the parties had adopted the JCTIFC with its adjudication
provisions, or would be dependent on statute, in which case there
would be no right to adjudicate because of the residential occupier
exception. In the result, the court's jurisdiction was held not
to be limited by the TCC Guide which provided only guidance and it
would embrace the ability to decide the point on existence of the
contract.
SeeSeele Austria v Tokio Marine Insurance under Keating Chambers Reported Cases on refusal to allow amendments to Particulars of Claim for delay and issue estoppel.
Litigation Letter Vol.28 No.6 June 2009
contains the following articles:
Review of civil litigation costs: preliminary
report
(on the Jackson report)
Unfair international contracts
on Trident Turboprop (Dublin) v First Flight
Couriers
(exclusion of international supply contracts from
the Unfair Contract Terms Act)
Costs As Damages
Costs as damages by Louise Merrett, Trinity College,
Cambridge Law Quarterly Review Vol.125 July 2009 p.468
Starting from the proposition that it is "well
settled that the recovery by A from B must be by way of an order
for costs", the article examines the basic rule of English law
that, unless the claimant can rely on a separate cause of action,
litigation costs can only be recovered as costs and not as damages.
It examines the policy considerations supporting the rule and
exceptions: i) where costs were incurred in proceedings involving a
third party and ii) where the claimant is relying on a separate and
independent cause of action. While in exceptional cases it is
possible to claim costs incurred in other proceedings as damages,
assessment of such damages is problematic.
The Commercial Litigation Journal May/June 2009 No.25
contains the following article:
Jurisdiction: courting favour
by Ian Smith, 11 Stone Buildings
(on application of English law in cross-border commercial
disputes)
Employment litigation: a new era
by Anna Humphrey and Michael Bradshaw, Charles Russell
Contempt of court: more than a slap on the wrist
by Matthew Lawson and Rani Mina, Mayer Brown
Company law: shareholder redress
by Patrick Beale, Reed Smith
Jurisdiction: a place to stand
by David Howell and Sarah Thomas, Fulbright &
Jaworkski
(on West Tankers case)
Disclosure: arranging the haystack
by Dan Smith and Chris Storr, Barlow Lyde &
Gilbert
See Fitzpatrick Contractors v Tyco (No.3) under Keating Chambers Reported Cases on criteria for award of indemnity costs.
Settlement With Third Party
Siemens Building Technologies FE Ltd v Supershield
Ltd [2009] CILL 2723 TCC
Following the flooding of Slaughter & May's
office, Siemens as sub-sub-contractor had settled with the parties
up the contractual chain, following a multi-party mediation.
Siemens maintained its Part 20 claim against its
sub-sub-sub-contractor Supershield, claiming the sums paid in
settlement of the claims above it. The court held Siemens entitled
to recover in respect of a reasonable settlement it had made. The
test was whether the settlement came within a range which
reasonable people might have made in the same position, taking into
account the strength of the claim, legal advice, uncertainty and
cost of litigation and benefits of settling rather than
litigating.
KEATING CHAMBERS REPORTED CASES
British Telecommunications plc v SAE Group Inc
[2009] BLR 231 TCC
BT successfully sought declarations that its contract with
SAE contained no arbitration agreement or any agreement for expert
or third party determination, although there was an agreement for
expert determination in a draft version of an Appendix. The
arbitrator/expert appointed had no jurisdiction to determine any
disputes between the parties and his appointment, like the
proceedings, was null and void. These determinations were made
under the court's inherent jurisdiction, rather than the
Arbitration Act 1996.
Paul Buckingham
Seele Austria GmBh Co v Tokio Marine Europe
Insurance Ltd [2009] BLR 261 TCC
This is the continuation of proceedings previously in the
Commercial Court (and Court of Appeal) on an insurance claim for
damage caused by repair of defective glazing. In the TCC hearing,
the claimant sought to amend its Particulars of Claim and the
defendant sought to strike out the claim. The court refused to
allow amendments to allegations relating to design, as these were
subject to issue estoppel from the earlier hearings and the rule in
Henderson v Henderson, i.e. could not be raised so late. Quantum
amendments would be allowed.
Adrian Williamson QC
Fitzpatrick Contractors Ltd v Tyco Fire &
Integrated Solutions (No.3) [2009] CILL 2700 TCC
Already reported in BLR, this is the costs hearing of the
case on the effect of a quantum cap reported in Con LR and noted in
February 2009 issue. The claimant, Fitzpatrick, had made a Part 36
offer to settle proceedings with Tyco, which Tyco eventually
accepted. Fitzpatrick failed in its claim for indemnity costs,
although it got interest on its costs and an interim payment. The
case is useful for setting out the criteria for granting indemnity
costs.
Marc Rowlands
David Thomas QC
Jonathan Lee
YCMS Ltd v Grabiner [2009] BLR 211 and [2009]
BLM Vol.26 No.6 TCC
Although correction of an arithmetical error in an
adjudicator's decision would be allowable under the equivalent
of the 'slip rule,' where the adjudicator had gone further
and had recalculated sums using a different method (with a further
error), this would invalidate the revised decision. However, the
contractor's application for summary judgment was granted in
respect of the second decision, which was unaffected by the
errors.
Gaynor Chambers
Amaryllis Ltd v HM Treasury [2009] BLM Vol.26
No.6 TCC
The defendant client failed in its attempt to strike out a
challenge by the claimant contractor for alleged breach of the
Public Contracts Regulations 2006. The claimant had been
unsuccessful at the first stage tender process on the most valuable
element of furniture supply contracts under a framework agreement
and claimed that it had not been informed of weightings of
questions nor given adequate reasons for the outcome. The defendant
client failed in its arguments that the claimant's challenge
did not meet the requirements of the Regulations on the adequacy of
the notice and on time limits. The judgment contains useful
guidance on the meaning of 'promptly'.
Sarah Hannaford QC
Brookfield Construction (UK) Ltd v Foster &
Partners Ltd [2009] Construction Newsletter March/April 2009 4
TCC
The article 'The duty of the professional consultant
to assist' by Chris Hoar, Foot Anstey, is an extended case
note. It is the latest case in the Wembley Stadium litigation and
concerned a clause in a consultancy agreement for the provision of
architectural services between an architectural consortium and the
design and build contractors. The Court considered the obligation
of the consortium to provide the contractors with assistance,
whether it was a continuing obligation and the nature and scope of
the assistance. Brookfield was formerly Multiplex. See a full
report at [2009] BLR 246.
Alice Sims
The Dorchester Hotel Ltd v Vivid Interiors Ltd
[2009] BLM Vol.26 No.6 135 TCC
Already reported in BLR, a referral to adjudication on 19
December comprised a 92 page referral notice and 37 lever-arch
files. The defendant client sought declarations that the timetable
for such a volume carried a serious risk of a breach of natural
justice as giving inadequate time for response by the defendant and
decision by the adjudicator. The declarations were refused,
although the judge kept open the possibility of a challenge to
enforcement proceedings if the anticipated breach of natural
justice actually materialised.
Paul Buckingham
The articles and papers published by Keating Chambers are for the purpose of raising general awareness of issues and stimulating discussion. The contents must not be relied upon or applied in any given situation. There is no substitute for taking appropriate professional advice.
For further information on how our members can assist you, please contact the Senior Clerks, John Munton and Nick Child, in the first instance, on +44 (0) 20 7544 2600. They and their teams of Clerks will be pleased to advise you on the member of Keating Chambers appropriate to your requirements.
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