High Court: Technology and Construction Court judgments, 2008

Under Arbitration Act 1996, section 66, an arbitration award may be summarily enforced where the tribunal had substantive jurisdiction and no sufficient ground…

The court may alter the ordinary 14-day period for complying with a money judgment and may order payment by instalments. In exercising that discretion, it may…

Contract formation in a commercial “battle of the forms” is determined objectively from the parties’ words and conduct. A quotation may be rejected by a…

An adjudicator may investigate his own jurisdiction, but the parties must clearly reserve any objection to that jurisdiction. A reservation remains effective…

A settlement described as full and final settlement of all claims and cross-claims arising from a construction agreement ordinarily prevents a party pursuing…

The unsuccessful party will ordinarily pay the successful party’s costs. An issue-based costs order is appropriate only where the successful party’s failure on…

Construction adjudication does not prevent either party seeking a final determination from the court. CPR Part 8 may be used where the dispute falls within its…

In adjudication-enforcement proceedings, an adjudicator is not required to conduct a site inspection. The question is whether, exercising discretion in the…

An adjudicator may determine whether additional work formed part of the contract containing the adjudication clause, even where that issue overlaps with the…

A contract for the manufacture and supply of goods may be inferred where the transaction has been fully performed and the parties, price and workscope are…

An adjudicator’s decision must be enforced unless the adjudicator answered a question not referred or proceeded in an obviously unfair manner. An error of fact…

Where building works are agreed without a fixed lump-sum price or an agreed cap, the contractor is ordinarily entitled to a reasonable price for the work and…

A party cannot both rely on an adjudicator’s decision as valid and challenge its validity. Reliance on the decision to prevent a second adjudication may amount…

An adjudicator determining a money claim has jurisdiction to consider any defence open to the responding party, even if the defence was not raised before the…

A contractual agreement to mediate may justify a stay, but the court should first determine whether summary judgment is available. Where a claim has no defence…

On a summary judgment application, extensive evidence does not of itself make a claim unsuitable for determination under CPR Part 24. The court must examine…

For an interim injunction, the court must first ask whether there is a serious issue to be tried. It must then consider whether damages would be an adequate…

For section 107 of the Housing Grants, Construction and Regeneration Act 1996, all express contractual terms must be recorded in writing. Whether an orally…

In the absence of an agreed price, a contractor is entitled to a reasonable price for work carried out. Contract formation is assessed objectively. Silence may…

A contractual scope of services is determined objectively from the agreed documents and surrounding circumstances. In an evolving design process, work required…

Where a claimant succeeds on liability and recovers damages, the ordinary costs rule will generally apply even if the sum recovered is substantially less than…

A sectional completion agreement is enforceable where, read as a whole and purposively, it identifies the contractual dates for completion of each section.…

An application under section 69 of the Arbitration Act 1996 must identify a clear question of law arising from the arbitrator’s accepted findings of fact. It…

A Part 36 offer is not rendered incapable of later acceptance merely because it was previously rejected. Nor does the commencement of trial create an implied…

A final third party debt order requires a present debt due from the third party to the judgment debtor. The court must examine the underlying agreement and…

A commercial contract must be construed as a whole, against the relevant objective background, while giving proper weight to the words used. A final agreement…

Under CPR Rule 44.3(6)(g), the court has a broad discretion to award interest on costs from a date before judgment. The discretion is not confined to costs…

In commercial litigation involving competing monetary claims, the party entitled to the net payment will generally be the overall successful party for costs.…

Contractual valuation under a construction subcontract depends on work and materials actually completed, supplied or procured. Time elapsed does not itself…

Under Civil Procedure Rules 1998 rule 19.5, a party may be substituted after expiry of limitation where the party named in the claim form was named through a…

An adjudicator who considers a claim and refuses payment has made a decision, even if the decision gives inadequate reasons or suggests that the claim may be…

In assessing tort damages for delay, the court must identify the loss actually caused by the tort and must not treat unexplained differences in expenditure as…

A consumer arbitration clause in a standard-form construction contract may be unfair under the Unfair Terms in Consumer Contracts Regulations 1999. The…

An unless order may provide that specified consequences follow automatically upon non-compliance, without a further order. Because that consequence can be…

Adjudication is intended to be a quick, one-off process. A party cannot refer substantially the same dispute to a second adjudicator by advancing a new legal…

An application for pre-action disclosure requires the applicant to identify an arguable underlying claim and to satisfy each jurisdictional condition in CPR…

The TCC has jurisdiction to determine whether a construction contract exists and what terms it contains where that determination may establish a party’s right…

A payment by a third party discharges another person’s debt only where the payment is made as that person’s agent, for and on their account, with their prior…

Compensation for mining subsidence under the Coal Mining Subsidence Act 1991 requires physical subsidence damage to the claimant’s land or property. Pure…

In a civil claim, the claimant bears the burden of proving causation on the balance of probabilities. A court is not required to choose between competing…

An adjudicator’s decision should generally be enforced unless it is plain that the question decided was not referred or the adjudicator acted in an obviously…

An adjudicator has power under a contractual provision requiring him to set his own procedure to extend time for a response, subject to the overall timetable…

A supplier applying a compliant sports-floor sealant may owe obligations extending beyond supplying a product meeting the relevant standard. The product must…

Where a claim is compromised but the parties cannot agree costs, the court must account for the compromise and should ordinarily make no order unless the facts…

The Party Wall etc Act 1996 provides an exhaustive procedure for disputes falling within its scope. A building owner cannot rely on statutory protection for…

A party must comply substantively and clearly with a court order for disclosure. Alleged deficiencies in the other party’s disclosure do not answer…

An adjournment of a complex trial should be granted only where necessary to secure a fair and effective hearing consistent with the overriding objective. The…

In adjudication proceedings, a party may suggest a suitable adjudicator or disclose relevant technical or legal requirements to the nominating institution…

A consent costs order must be construed objectively, in the context of the order as a whole and the background reasonably available when it was made. The…

A supplier is not liable for a fire merely because an electrical installation later becomes unsafe. Liability depends on proof that the supplier breached an…

Costs are determined by applying the general rule that the successful party should recover its costs, subject to the court’s discretion and all the…

A consultant does not ordinarily owe a tortious duty to a contractor for economic loss merely because the contractor receives and may use tender drawings…

A non-party may be ordered to pay litigation costs where it funded and controlled the proceedings and was the real beneficiary of the litigation. The court may…

In an unopposed assessment of damages, the claimant retains the burden of proving its entitlement and the amount of loss. The court must scrutinise the…

A marine surveyor who undertakes to advise whether a vessel is capable of MCA coding must exercise the reasonable skill and care expected of a reasonably…

A letter of intent may create a binding interim contract even where the parties expect a formal construction contract to follow. The question is one of…

The court has a wide discretion to appoint an assessor under CPR 35.15. The discretion must be exercised consistently with the overriding objective, including…

In TCC proceedings issued at a regional centre, transfer to London is justified only where the balance of convenience and fairness favours London. The size…

A contractual reference to the NHBC Buildmark Scheme ordinarily identifies the prescribed Buildmark warranty and insurance document, rather than a generic…

Compliance with a pre-action protocol is assessed in substance, not by technical or semantic objections. Minor omissions do not justify costs sanctions where…

An irregular extension of time does not automatically deprive the court of jurisdiction. Under the Civil Procedure Rules 1998, the court retains a broad…

Indemnity costs require conduct that is unreasonable to a high degree and takes the litigation out of the ordinary norm. A claim that is merely weak, or…

On an application to vary an interim injunction, the court must first consider whether there is a reasonably arguable claim and defence. If so, it must assess…

Contract construction requires the court to consider the factual background reasonably available to the parties, while maintaining proper weight for the words…

An expert determination is binding if the expert decides the question referred to him, even where the decision contains errors. The court will not generally…

A letter of intent may create a binding interim contract even though the parties expect to agree fuller terms later. The court must identify objectively the…

In a battle of standard terms, the court determines incorporation objectively from the parties’ communications and conduct. Specifically identified contractual…

Contract formation is assessed objectively from the parties’ words and conduct viewed as a whole. Parties may intend to be bound while leaving terms for later…

A contractual term should be implied only where the strict requirements for implication are satisfied. A contract’s commercial purpose and a party’s alleged…

A liquidator may assign the fruits of proceedings as company property, but cannot assign personal statutory powers to prosecute or control those proceedings.…

Where an employer takes partial possession of works and the contract contains no provision for sectional completion, the principle in Bramall & Ogden v…

Time limits for court intervention in arbitration reflect the finality and expedition policies of the Arbitration Act 1996. In an application to extend the…

Section 14(1) of the Arbitration Act 1996 requires an agreement as to when arbitral proceedings are to be regarded as commenced. The agreement need not…

In complex group litigation, the court may make a costs capping order without requiring exceptional circumstances. The order may be mutual and should…

A contractual restriction preventing proceedings before certification of completion must be construed in its contractual and commercial context, while…

Reasonableness of contractual plant rates is assessed by reference to the circumstances when the contract was made. Later use of a rate in a different contract…

Amendments sought during trial should be allowed where they are needed to determine the real dispute, unless the resulting prejudice cannot fairly be…

A contractual reference to an employer’s agent’s certificates does not, without clear language and an adequate contractual mechanism, create a freestanding…

A restitutionary claim for an unrequested improvement to another’s land is subject to the distinct principles governing mistaken improvements to land. Relief…

Negotiations genuinely aimed at resolving a dispute are protected by the without prejudice rule even if no formal claim has yet been made and the…

Commercial contracts are construed by giving their words their natural and ordinary meaning in the context of the agreement as a whole and its relevant…

On an application to enforce an adjudicator’s decision, the court should first determine any jurisdiction challenge. If the adjudicator had jurisdiction, the…

An arbitration clause specifying a geographical place as the seat does not necessarily determine the juridical seat where the contract, read as a whole…

Applications to transfer county court proceedings to the Technology and Construction Court should be made to the receiving court, with notice to the county…

Pre-action costs may in principle be included in security for costs, but the discretion should be exercised cautiously. Costs of a separate pre-action…

An adjudicator must determine the essential disputed claim, rather than confining the reference to the parties’ pre-referral arguments or evidence. A…

On an application for summary judgment, a claim should proceed if it has a real, even weak, prospect of success. The court must avoid conducting a mini-trial…

The court should take a pragmatic and commercially realistic approach when deciding whether non-compliance with a construction pre-action protocol justifies a…

A structural engineer advising on building movement must investigate the nature of the subsoil, foundations and existing damage sufficiently to assess risks…

When deciding an application to amend shortly before a long and complex trial, the court must exercise its discretion in accordance with the overriding…

When a contractual representation refers without qualification to an expert report, the reference ordinarily covers the report as a whole. It is not confined…

Amendments should generally be permitted where they enable the real dispute to be adjudicated, unless the opposing party would suffer prejudice that a costs…

Under CPR 35.11, any party may rely at trial on an expert report disclosed by another party, even where the disclosing party has subsequently ceased to…

A notification under a claims-made professional indemnity policy covers the specific circumstances objectively identified in the notice. It may include defects…

A duty of care in tort may exist alongside contractual duties where negligent work causes physical damage and consequential financial loss. The contractual…

Costs ordinarily follow the event, but the court may make a proportionate order where the successful party failed on a distinct and significant issue. In…