High Court: Technology and Construction Court judgments, 2005

A contractual obligation to respond to emergency repair calls may carry an implied term requiring reasonable care and skill in investigating, identifying and…

A Part 20 claimant should comply in substance with the Pre-action Protocol for Construction and Engineering Disputes. The Protocol applies even where a party…

A building contract requires agreement on the parties, price and workscope, but an express completion period is unnecessary where the law can imply performance…

Whether a dispute has arisen for adjudication is a question of fact assessed by a rigorous but common-sense examination of the substance of the claim and…

Compensatory damages for tortious damage should place the claimant in the position that would probably have been occupied had the tort not occurred. The court…

Where a professional services contract contains no agreed fee or time rates for additional work, the consultant may recover a reasonable remuneration for…

Loss of use damages in building cases must reflect proved loss caused by being unable to occupy or use the property. Special damages, such as service charges…

An adjudication clause extending to disputes arising “under, out of or in connection with” a construction contract may encompass disputes concerning…

An assignment of a bare cause of action is valid where the assignee has a genuine commercial interest in enforcing the claim and the transaction does not…

A final-account compromise in a building contract does not ordinarily settle the employer’s separate claims for damages for defects unless that is its proper…

Late amendments may be permitted where the opposing parties can fairly respond before trial and the trial date is preserved. The court must refuse an amendment…

Permission to appeal an arbitral award under Arbitration Act 1996, section 69, requires a question of law which substantially affects the parties’ rights, was…

An order for costs on the indemnity basis may be made where litigation, or the circumstances in which it arose, takes the case outside the norm. The conduct…

Summary enforcement of an adjudicator’s decision should ordinarily follow the adjudication scheme’s purpose of securing prompt interim payment. A defendant…

A contractual mechanism which postpones a contractor’s access to adjudication cannot override the immediate statutory right conferred by section 108 of the…

For the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996, an agreement may be sufficiently made or evidenced in writing…

In a complex construction contract, a provisional sum is deducted when the corresponding work or expenditure is valued and added to the contract price.…

A construction contract is excluded from the adjudication provisions where it includes provision for the grant or disposal of a relevant interest in land on…

Where fresh evidence raises serious allegations and cannot fairly be answered within the existing timetable, the court should adjourn the hearing and allow…

Costs may be determined by reference to discrete issues or heads of claim, rather than by treating the litigation as a single event. The court should identify…

A break clause requiring a tenant to have materially complied with its lease obligations does not demand perfect or strict compliance. Materiality is assessed…

Where an insurance policy names a non-existent insured, the claimant must prove, by construction of the policy and admissible evidence, that it was…

Where substantial fresh evidence may materially affect pending applications and an appeal, the trial judge should ordinarily gather and determine that evidence…

Permission to appeal an arbitral award under Arbitration Act 1996, section 69, requires a properly identified question of law which substantially affects the…

A letter of intent may incorporate standard contractual terms even though the parties expect to execute a later formal contract. The question is one of…

A professional surveyor undertaking a full design and contract-administration service remains responsible for design, inspection, coordination and integration…

A lump-sum fee payable by regular instalments for management services is not ordinarily subject to abatement merely because some defined services remained…

Pre-action disclosure is exceptional and requires satisfaction of each condition in CPR 31.16(3), followed by a discretionary assessment. The documents sought…

Insurance claims co-operation clauses may operate as conditions precedent, but their wording must be sufficiently clear. Where no express time limit is stated…

Where fire damage requires repair or refurbishment, the reasonable cost of properly designed and carried-out works is recoverable in full where there is no…

Fraudulent insurance claims require proof, on the balance of probabilities, that the insured knowingly or recklessly advanced a false or exaggerated claim.…

A direct payment order requiring an indemnifying party to pay the claimant directly can remove the intermediate party’s entitlement to receive the payment and…

Indemnity costs may be ordered where litigation has been pursued to a high degree of unreasonableness, even without moral misconduct or an ulterior purpose.…

A professional designer may owe a duty of care in negligence to later owners, occupiers or users whose property is physically damaged by a latent design…

In a commercial insurance policy, a brief description of the insured business may operate as an umbrella description rather than an exhaustive list of every…

Indemnity costs require more than success or an unsuccessful argument. The paying party’s conduct must be unreasonable to a high degree, although moral…

The modern rule in Rylands v Fletcher remains available in appropriate fire cases. Liability requires dangerous things brought onto land which, if ignited, are…

Where related arbitration agreements provide for disputes raising substantially the same or connected issues to be heard by the same arbitrator, a material…

A later loan agreement does not supersede an earlier agreement merely because it restates or amends the loan terms. The agreements must be construed together…

Under the principle of open justice, there is no legitimate distinction between interlocutory proceedings and a final trial when considering public access to…

On a summary judgment application under CPR Part 24, the court must determine whether the opposing case has a real, rather than fanciful, prospect of success…

Section 69 of the Arbitration Act 1996 provides a tightly limited route for challenging an arbitral award. An applicant must identify a question of law arising…

In a bespoke commercial contract, liability caps and exclusion clauses are construed by reference to the words used and the contract as a whole. A party’s…

An adjudicator’s contractual power to award legal costs as part of his decision arises only where the adjudicator decides the matters referred. If the…

The court may grant a freezing injunction before proceedings where it is just and convenient and the interests of justice require protection against asset…

An application for pre-action disclosure under Civil Procedure Rules 1998, rule 31.16, requires separate consideration of the four jurisdictional conditions…

A commercial party is not entitled to supplement the contractual arrangements it deliberately made by implying a collateral warranty where it chose to contract…

A default judgment must be obtained under the procedure applicable to the remedies claimed. Where a claim includes remedies beyond those permitted for judgment…

Under a contractual adjudication timetable, an application to nominate an adjudicator may validly be made on the seventh day. The provision is directory, not a…

For the purposes of contribution under section 1 of the Civil Liability (Contribution) Act 1978, statutory references to a “payment” can include payment in…

Material disclosed by a solicitor may lose legal professional privilege as against the opposing party where the disclosure was authorised, or where it reveals…

Applications challenging an arbitral award under sections 24, 68 and 69 of the Arbitration Act 1996 require a clear procedural failure, substantial injustice…

A contractual adjudication agreement remains effective for disputes concerning instructed variations and additional work where the underlying contract…

An adjudicator’s decision should ordinarily be enforced promptly. On an application to stay enforcement, the court must exercise its discretion with the…

A project manager who assesses sums payable under a construction contract may be required to act impartially between employer and contractor where the contract…

A statement of case should not be struck out merely because it is untidy, contains redundant material, or makes the future pleadings more difficult to use.…

Under paragraph 17 of the Electronic Telecommunications Code, an objection to telecommunications apparatus requires more than the claimant’s subjective belief…

Construction adjudication is an interim process. An adjudicator’s decision remains binding and enforceable despite errors of fact, law or procedure, provided…

A contract for the supply, installation and commissioning of specialist machinery may be concluded orally during negotiations, with later purchase orders…

A court reviewing an arbitral award must distinguish jurisdictional challenges and serious-irregularity challenges from an impermissible appeal on the facts.…

Legal advice privilege depends on a relevant solicitor-client relationship concerning the client’s rights, obligations or remedies. Once established, it is…

On an application to enforce an adjudicator’s decision, the court may consider jurisdictional objections summarily. Where the responding party has reserved its…

Whether a dispute falls within an arbitration clause is determined objectively by construing that clause. Decisions on differently worded clauses are…

An oral agreement may novate a construction sub-contract where the evidence shows an intention to substitute a new contracting party. The court may determine…

Under the Unfair Terms in Consumer Contracts Regulations 1999, standard contractual terms may be unfair where, viewed at the time of contracting, they create a…

A construction sub-sub-contract may require the employer to complete the works within a reasonable time, assessed by reference to the main contractor’s…

In exercising the costs discretion, the court must assess the overall course of the litigation. The successful party is ordinarily identified by the net…

A liquidated damages clause is enforceable where the stipulated sum is a reasonable pre-estimate of the loss likely to result from breach. The estimate need…

A construction manager’s obligation to procure compliance by trade contractors is construed in the context of the agreement as a whole. Words such as “procure”…

Where negotiations are conducted by a company’s personnel, an offer may objectively be treated as made by that company unless the counterparty is clearly…

A subcontractor cannot be treated as having transferred its contractual relationship to another member of a joint venture without its knowledge and consent.…

Permission to appeal an arbitration award on questions of law under Arbitration Act 1996, section 69, requires the statutory threshold to be met. The question…

Where a construction contract is agreed on an open-book cost-plus basis with target costs, those targets may form an enforceable base cost rather than a mere…

A compromise is binding only when all material terms have been agreed. A proposal remains capable of acceptance or rejection where the correspondence shows…

In adjudication, the scope of the dispute is determined by the parties’ Notice of Adjudication and Referral Notice, construed with commercial common sense. A…

Where a consortium creates and controls a project through companies using the consortium’s name, its members may hold those companies out as authorised to…