High Court: Technology and Construction Court judgments, 2007

A binding construction contract may arise despite outstanding detail, provided the parties objectively manifested agreement on sufficiently certain terms.…

A professional services contract must be construed according to its agreed fee structure. A contractual entitlement to percentage fees for the basic workscope…

Under Civil Procedure Rules 1998 Part 45, fixed costs apply by default where the specified conditions are met, but the court retains discretion to order…

A claimant recovering damages for professional negligence or breach of contract must prove that the claimed loss was caused by the established breach, was…

A written arbitration agreement is effective where made in writing, evidenced in writing, or made by reference to written terms. An arbitration clause may be…

Substitution of a claimant after limitation has expired is governed primarily by CPR 19.5. A mistake as to the identity of the proper claimant is distinct from…

A liquidator’s statutory power to sell company property does not authorise the sale of rights subject to a valid contractual prohibition on assignment. Such a…

Retention monies held under a construction contract may be subject to both contractual and trustee obligations. Following a request for segregation, the…

An interim injunction is appropriate where unauthorised works to jointly owned property raise a serious issue to be tried, the balance of convenience favours…

Interim payment provisions in a construction subcontract must be construed as a mechanism for determining the amount to be paid, rather than as a determination…

Adjudication agreements and notices should be construed commercially and in context. A misdescription of the referring party does not invalidate an…

The appropriate forum for proceedings is determined by whether they involve technically complex issues or whether trial by a Technology and Construction Court…

A specialist asbestos contractor is responsible for contamination caused by adopting an unsafe removal methodology and carrying out the work recklessly. A main…

Risk/reward provisions in a construction subcontract apply to interim payments where the contract makes interim payment subject to adjustments and does not…

An extension-of-time notice clause may operate as a condition precedent even without an express warning that non-compliance will remove the entitlement to an…

A party challenging an adjudicator’s jurisdiction must either agree to be bound by the adjudicator’s decision on jurisdiction or reserve the right to challenge…

Applications to adduce late expert evidence or amend a pleading require the court to balance the desirability of allowing a reasonably arguable case against…

A claim arising from a fire does not automatically qualify for transfer to the Technology and Construction Court. The statutory criteria require either…

An appeal from an arbitral award requires a properly arguable question of law. The court will not permit a party to recast a challenge to primary facts…

When the court enforces an adjudicator’s decision, the cause of action is contractual: it arises from failure to comply with the adjudicator’s decision…

A contractual adjudication clause remains enforceable despite an alleged oral variation of the underlying construction contract, unless the contract expressly…

An adjudicator’s decision should be enforced unless the question decided was not the question referred or the adjudicator acted in excess of jurisdiction or…

Applications to amend pleadings shortly before trial should be assessed by reference to the nature of the proposed case and the prejudice caused by allowing…

An agent who acquires property in a principal’s name without authority does not thereby confer beneficial ownership on the principal. Beneficial ownership may…

Preliminary issues should be ordered only where they are likely to produce a substantial saving of time or cost, materially improve settlement prospects, or…

For limitation purposes, actual knowledge of damage attributable to negligence requires knowledge of the material facts constituting the essence of the…

An interim payment may be ordered after a claimant obtains judgment for a sum to be assessed, provided the payment is just and does not exceed a reasonable…

The Pre-action Protocol for Construction and Engineering Disputes applies to disputed claims for professional fees by consulting engineers, even where the…

A binding construction contract may arise from informal documents and conduct where the parties, work and price are sufficiently certain. A signature and…

The statutory enforcement scheme for sewerage duties does not automatically exclude every common-law or human-rights claim. The Marcic principle precludes…

Professional negligence requires the standard of the reasonably competent professional exercising the relevant skill. An engineer is not negligent for failing…

An arbitration agreement is not defeated by an ineffective or inapplicable contractual precondition. Where the specified dispute-resolution process cannot…

An issue determined by the High Court in enforcement proceedings between the parties is binding in later arbitration proceedings where it identified the…

Challenges under section 68 of the Arbitration Act 1996 require both a qualifying procedural irregularity and substantial injustice. The court’s role is a…

Where a construction contract permits sums to be retained following determination, the provision may comply with section 111 of the Housing Grants Construction…

The rule in Henderson v Henderson addresses abusive re-litigation. It cannot be used to oppose a late amendment in the existing action merely because the…

Under CPR 38.6, discontinuance normally attracts an order requiring the claimant to pay the defendant’s costs. The court retains a discretion to depart from…

A contract for professional design services does not ordinarily contain an implied term that a specified outcome will be achieved unless the desired outcome…

A claimant assessing loss after defective construction works must take reasonable steps to mitigate, judged by the circumstances existing at the time and…

A claimant may establish negligence through res ipsa loquitur where the precise mechanism of an accident cannot be proved, provided the evidence makes it more…

The court has an inherent, discretionary jurisdiction to stay proceedings brought in breach of a binding agreement to adjudicate. Where such an agreement…

Joint-names insurance against specified perils may establish a special contractual regime which displaces ordinary liability for negligence or breach of…

In a defective building work claim, the ordinary measure of loss is the reasonable cost of reinstatement or repair. Where competing remedial schemes are…

Contractual insurance provisions may determine whether a common-law duty of care exists between parties in a construction chain. Although physical damage to…

Damages must be supported by evidence addressing the value of the individual property or loss claimed. An aggregate valuation, or an expert assumption that…

In an unusually complex administration, the court may extend statutory deadlines where necessary to balance orderly administration, proportionality and the…

A late amendment should generally be allowed where it permits the real dispute to be determined, provided resulting prejudice can be compensated in costs and…

A construction contract need not comprise a single document or encompass every agreement between the parties. Where the parties have made separate contracts…

An adjudicator’s decision under the Housing Grants, Construction and Regeneration Act 1996 and the Scheme for Construction Contracts must be completed within…

Under contractual building guarantee rules, sums are recoverable on demand only if they are sums for which the developer is liable under the scheme. Liability…

A repairing covenant does not generally require a tenant to provide perfect or pristine premises. Where more than one scheme would satisfy the covenant, the…

A construction contract may be enforceable without being sufficiently documented to support statutory adjudication. Under section 107 of the Housing Grants…

Leave to appeal an arbitral award under Arbitration Act 1996, section 69, requires an identifiable question of law which the tribunal was asked to determine.…

A claimant seeking to use the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 must establish both a construction contract…

The High Court may restrain an arbitration under section 37 of the Supreme Court Act 1981, but only where the injunction would not cause injustice to the…

Permission to appeal an arbitration award under section 69 of the Arbitration Act 1996 requires a true question of law, an obviously wrong decision (or a…

In a construction contract with a residential occupier, contractual adjudication provisions may operate even though Part II of the Housing Grants, Construction…

In assessing costs, the court must identify the successful party by substance and reality. Costs generally follow the event, but the court retains a discretion…

A construction contract may arise where the documents identify the parties, work scope and price, and objectively show an intention to create legal relations.…

Damages for breach of contract and negligence must be caused by the defendant’s wrongdoing and must not arise from an independent cause. Where concurrent…

For the purposes of Article 5(3) of Regulation 44/2001, “matters relating to tort, delict or quasi-delict” is an autonomous European-law concept wider than…

An application under section 68 of the Arbitration Act 1996 is a longstop remedy. It cannot be used to appeal an arbitrator’s factual assessment or to…

A claimant may recover losses caused by negligent delay in completing contracted works, including reasonable consequential expenditure and loss of profit…

Contractual exclusion clauses require clear words before removing common-law rights or remedies. A warranty preserving rights provided by law may coexist with…

A conventional reasonable-precautions clause in a liability or property insurance policy is not breached by mere negligence. The required standard is…

An engineer retained for permanent works must take reasonable steps to address a dangerous condition in temporary works where he observes that condition and it…

The court has a broad discretion over costs under CPR 44.3, guided by the overriding objective. A claimant who fails against both defendants will ordinarily…

An adjudication cannot validly begin unless the adjudication notice is effectively served in accordance with the applicable statutory service provision.…

Failure to comply with a construction pre-action protocol can justify an early costs order where the breach caused proceedings or litigation costs that might…

A costs order against a non-party funder under section 51 requires a causal link between the funding and costs incurred by the applicant. If those costs would…

Under section 35A of the Supreme Court Act 1981, interest on a restitutionary quantum meruit claim for building work should not necessarily run from handover.…

Parties may confer or widen an adjudicator’s jurisdiction by agreement, including through their pleadings and conduct. A party that advances substantial…

After a successful party wins a preliminary issue, the court may make an immediate costs order even though the litigation continues. The usual approach is to…

Legitimate contractual instructions may amount to acts of prevention if they delay completion beyond the contractual date. They do not set time at large where…

A contractual inspection clause forming part of an operative appendix may confer a continuing right to inspect the current version of a linked construction…

Where separate categories of claim are tried separately, a successful party may receive the costs of a distinct category which it has wholly defeated, even…

In a construction defects claim, professional liability is governed by the services actually undertaken, not every function normally associated with the…

A settlement is not binding merely because the parties have agreed a headline figure. The court must construe the communications objectively against their…

On an application for security for costs concerning a counterclaim, the court must first decide whether the counterclaim is a genuine independent claim or…

Words such as “flood” and “burst” in an insurance policy or related construction contract do not have fixed meanings applicable in every context. Their meaning…

Where a court orders payment by a stated deadline but prescribes no payment method, payment by cheque may satisfy the order if the creditor accepts the cheque…

Where parties orally agree that liquidated and ascertained damages will not apply, the court must determine objectively whether they intended to preserve a…

On an application under CPR 31.19 to challenge redactions or claims to privilege, the court should proceed principally on the evidence. If the asserted right…

Enforcement of an arbitral award under Arbitration Act 1996 section 66 is discretionary, but a detailed re-analysis of the arbitrator’s reasoning is…

On an application for security for costs against a company’s counterclaim, the statutory condition that the company may be unable to pay costs does not itself…

A first-instance court retains jurisdiction over a judgment until the order giving effect to it has been drawn up and sealed. That jurisdiction may include…

An adjudicator’s decision binds the parties until final determination or subsequent agreement. A party cannot obtain a further adjudication of the same or…

A contractual adjudication procedure that fails to comply with the statutory requirements is displaced by the adjudication provisions of the Scheme for…

For limitation purposes, an amendment does not add a new claim merely because it corrects the identity of a contractual document. The court must identify the…

Contractual responsibility for temporary works depends on construing the agreement as a whole in its commercial and factual context. Where schedules are…

A contractual limitation clause may be incorporated where the relevant document gives reasonable notice that contractual conditions apply. An unusually onerous…

A letter of intent headed subject to contract does not necessarily prevent contractual liability, but the question is one of construction. Where the…

An adjudicator’s decision is reached when the adjudicator has completed it, but the time for reaching it may be contractually extended on conditions agreed by…

A later claim may constitute an abuse of process even where it is brought against defendants who were not directly sued in the earlier proceedings. The court…

An adjudicator’s jurisdiction is confined by the scope of the pre-existing dispute. The referring party cannot enlarge that jurisdiction merely by drafting a…