High Court: Technology and Construction Court judgments, 2006

A certificate of lawful use issued under section 191 of the Town and Country Planning Act 1990 conclusively establishes the lawfulness of the certified use. A…

Where a construction contract contains adjudication provisions complying with the Housing Grants Construction and Regeneration Act 1996, the express…

Where a contract provides that labour time runs from leaving the depot until returning to it, that wording may include travelling time, working time and meal…

On an application for a non-party costs order against professional indemnity insurers, the court may exercise its discretion under Supreme Court Act 1981…

In adjudication enforcement proceedings, a court will not summarily enforce an award where it is reasonably arguable that the claimant was not a party entitled…

A supplier is liable where goods fail to comply with an express description, are of unsatisfactory quality, or are not reasonably fit for their purpose. Civil…

An application to set aside summary judgment must be made promptly and must be supported by a good explanation for the earlier non-attendance. The court may…

After expiry of the limitation period, the court may permit a new cause of action to be added where it arises out of the same or substantially the same facts…

A contractor’s inability to continue work, caused by the lapse of essential insurance and imminent insolvency, may amount to repudiation. The employer may…

Permission to appeal an arbitral award under Arbitration Act 1996, section 69, requires a genuine question of law, substantial effect on the parties’ rights…

A contractual time bar may operate in addition to statutory limitation. It cannot extend the period available under the Limitation Act 1980 or redefine when a…

A refusal to mediate may be unreasonable even where parties have exchanged settlement offers and one party considers its case strong. The court should assess…

A determination of a building contract’s Final Account does not necessarily make the balance immediately payable. Where a supplemental agreement fixes only the…

After expiry of limitation, an amendment adding a new duty or cause of action may be allowed only where the new claim arises from the same or substantially the…

In a design and build contract, the contractor’s obligation to complete the works ordinarily includes the detailed design needed to particularise and complete…

An agent who contracts for a principal remains personally liable unless the contract and surrounding circumstances show that personal liability was expressly…

In enforcing an adjudicator’s award, the court should adopt a rigorous and commonsense approach to whether a dispute has arisen. It should examine the…

Service by fax is effective only where the recipient has previously indicated in writing a willingness to accept electronic service. A fax number on a…

For a freezing injunction, the claimant must show both a good arguable case and a real risk that a judgment will remain unsatisfied because of asset…

A contractual right to modify development plans or substitute materials is limited by the wording of the contract. The developer must use every endeavour to…

Incorporation of standard terms requires reasonable notice of the conditions before contract formation. A reference to conditions on the reverse of a fax…

Commercial agreements should be construed, where possible, to preserve rather than defeat the bargain. Once an agreement has come into existence and the…

For non-party disclosure, the threshold in CPR rule 31.17(3)(a) is satisfied where the documents may well support the applicant’s case or adversely affect…

A contract is not a sham merely because it is disadvantageous, artificial, later varied, or subsequently operated imperfectly. The question is whether all…

An adjudicator’s decision under a construction contract should generally be enforced pending final determination, even where one party is alleged to have…

Adjudication decisions should ordinarily be enforced unless it is plain that the adjudicator decided a question outside the reference or acted in an obviously…

A supplemental agreement which varies the contract price and completion dates, identifies settled and unsettled matters, and remains intertwined with the…

For the exemption in section 198(6)(b) of the Town and Country Planning Act 1990 to apply, the nuisance must be actionable, involving actual or imminent damage…

A claimant assembling manufactured components is not liable for alleged product failures unless the defendant proves both the probable mechanism of failure and…

A court-ordered expert statement is ordinarily open and may be used in subsequent proceedings, even if it is also used in mediation. The position changes where…

Under CPR 32.3, the court has a broad discretion to permit evidence by video link. Physical attendance is generally preferable, but the court must assess…

Contractual design obligations must be construed objectively from the language used, read with the relevant technical background, surrounding circumstances and…

Adjudicators’ decisions under the Housing Grants Construction and Regeneration Act 1996 are ordinarily enforced summarily and on a provisional basis. A party…

A construction contract falls within the statutory adjudication regime only if the agreement, including terms material to the dispute, is evidenced in writing.…

A settlement offer which includes a term concerning costs is not a valid Part 36 offer. The court may nevertheless exercise its discretion under Civil…

In exercising the costs discretion under Civil Procedure Rules 1998, r 44.3, the court must consider all the circumstances, including conduct, partial success…

An engineer retained to merge an architect’s layout with a survey plan must follow that brief and has little discretion to make material changes. Changes…

A letter of intent may be an appropriate means of commencing construction works before execution of the full contract. Its suitability depends on whether the…

For the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996, oral instructions given under an existing written construction…

A court which made a charging order has jurisdiction to order sale under CPR 73.10, even where a practice direction allocates such claims to another Division.…

A court may use its broad costs discretion under CPR 44.3 to require a party whose disclosure breach caused another party reasonably to incur costs to…

Under section 45 of the Arbitration Act 1996, the court retains a discretion to determine a question of law arising during arbitration, even where the parties…

Costs of preliminary issues should ordinarily be reserved where the final accounting, damages or other unresolved matters may materially affect which party was…

A binding contract may arise where an offer is accepted by conduct which clearly communicates acceptance, including payment made in the manner requested by the…

A contractual fitness-for-purpose obligation requires the completed works to be capable of performing their specified function without an unacceptable risk of…

In tree-root subsidence claims, the claimant must prove on the balance of probabilities that the defendant’s breach caused or materially contributed to the…

An adjudication challenge brought within the contractual time limit is ordinarily concerned with the adjudicator’s final decision, not an interim ruling made…

Enforcement of an adjudicator’s decision is the ordinary course. The court should interfere only where it is plain that the adjudicator decided a question not…

An unsuccessful claim does not, by itself, justify indemnity costs. The court must assess all the circumstances, including admissible settlement offers and the…

A contractual exclusion of liability for property damage may encompass claims framed in contract as well as tort. Where liability is preserved for damage that…

Adjudication awards in construction disputes are ordinarily enforceable immediately, even where the losing party has a separate claim which may later require…

A later formal agreement may retrospectively supersede an earlier preliminary agreement where that is the parties’ intention. An obligation to use reasonable…

An occupier may owe a duty of care to neighbouring property owners where combustible material creates an obvious and significant risk that third parties may…

Applications to amend pleadings on the first day of trial require a structured and proportionate balancing exercise. The court should consider the prejudice to…

An alleged construction cost ceiling is unenforceable where the scope of the works, pricing basis and remedial obligations are insufficiently defined. A…

Where a claimant fails to beat a Civil Procedure Rules 1998 Part 36 offer or payment into court, the usual costs consequence is that the claimant pays the…

Under a reinstatement insurance policy, the insured must identify clearly whether proposed works reproduce the pre-loss building or include improvements.…

A compromise is construed from the words used by the parties in their proper context. Subjective intentions are irrelevant. Wording such as all claims made…

Pre-action disclosure in construction litigation requires a fact-sensitive assessment under CPR rule 31.16. The applicant must first show a real prospect that…

An interim contract incorporating terms from a draft agreement incorporates only those terms necessary to define the services, where the wider draft terms…

Letters of intent have no fixed legal effect. Their meaning depends on the wording and circumstances. They may create binding contracts for limited work…

An application for committal for breach of a court undertaking is quasi-criminal. The breach must be proved beyond reasonable doubt, and the undertaking must…

Specific disclosure must be confined to documents relevant to pleaded issues and proportionate to the needs of the case. A party may be required to provide…

A default judgment should be set aside under CPR 13.3 where the defendant has a real prospect of successfully defending the claim and, having regard to all the…

An adjudicator’s decision under the Housing Grants, Construction and Regeneration Act 1996 is binding and should ordinarily be enforced on an interim basis. A…

Where a reserved judgment has been sent to the parties before settlement, the court retains a discretion whether to publish it. That discretion exists to…

An adjudicator’s decision is intended to produce a prompt result with which the parties must comply, even though it may later be revised in arbitration.…

Under Arbitration Act 1996, the words “final and binding” do not, by themselves, exclude an appeal on a question of law. The court must construe the parties’…

Economic duress requires pressure which compels the claimant or removes practical choice, is illegitimate, and significantly induces the contract. Commercial…

An adjudicator’s decision should generally be enforced despite an error of law or an arguable failure to consider evidence, provided that the adjudicator…

On an agreed appeal under section 69(2)(a) of the Arbitration Act 1996, the court must decide genuine questions of law correctly; the Act’s policy of…

A claimed purchaser’s lien over registered land may be protected by a unilateral notice before the lien has been adjudicated. The court nevertheless retains…

Unless Orders are exceptional and should not be imposed routinely for every failure to comply with an earlier order. They are generally appropriate only where…

Summary assessment on the standard basis requires a two-stage approach. The court must first decide whether the costs as a whole are disproportionate, having…

Adjudication decisions under the Housing Grants, Construction and Regeneration Act 1996 are intended to secure immediate cash flow. Subject to special…

Successive adjudications concerning extensions of time are permissible where they arise from separate disputes based on different grounds. A contractor may…

Costs remain a matter of judicial discretion. The starting point is that costs follow the event, but the court must consider all the circumstances, including…

In adjudication enforcement proceedings, the court should enforce an adjudicator’s decision unless the adjudicator decided a matter outside the referral or…

Under Civil Procedure Rules 1998, a party may use an expert report disclosed by another party where that report was disclosed with permission under CPR 35.4.…

A professional services contract may impose enforceable obligations as to time in addition to the duty to exercise reasonable skill and care. The obligation is…

A settlement offer marked “without prejudice save as to costs” may be admitted to determine whether it was accepted and created a binding compromise. The court…

A statutory water undertaker may use an assumed volume to calculate sewerage charges, but its statutory power extends only to services actually provided. A…

A construction manager may perform both an agency function for the employer and a decision-making function affecting the parties’ competing interests. When…

An adjudicator’s decision should ordinarily be enforced by prompt enforcement proceedings in the Technology and Construction Court. A party cannot generally…

An architect advising on a complex construction project must give clear, timely and sufficiently detailed advice about design decisions, procurement…

On an application to enforce an adjudicator’s decision, summary judgment may be given where the proposed defence has no real prospect of success. The court…

In determining costs, the court must identify the successful party by assessing the litigation as a whole, while considering partial success, conduct…