High Court: Technology and Construction Court judgments, 2009

In procurement challenges, an interim injunction requires a serious issue to be tried and a balance of convenience favouring relief. The court must assess…

An adjudicator must consider substantive defences properly advanced by a responding party. However, the adjudicator may decide within jurisdiction that…

Where a professional services contract provides for a fair proportion of a lump-sum fee after suspension, the assessment should reflect the services actually…

An adjudicator may correct an accidental error or omission under an implied slip rule, provided the correction gives effect to the adjudicator’s first thoughts…

A stay of execution suspends enforcement. It does not discharge, set aside or otherwise nullify orders lawfully made before the stay. Nor does it, without…

When deciding whether a proposed amendment introduces a new claim for limitation purposes, the court must assess whether it arises from the same or…

Without prejudice negotiations are generally inadmissible when the court determines costs. The protection extends beyond offers to communications which may…

The court may stay proceedings where a claimant pursues a claim without honouring an adjudicator’s decision and judgment concerning the same underlying…

Where parties agree declarations in Part 8 proceedings but leave costs for determination, the court assesses success by reference to the practical value of the…

Where amended standard-form construction conditions conflict fundamentally with bespoke employer’s requirements, the contractual hierarchy clause governs. The…

An agreed final account may complete the contractual final-account process where the documents objectively record the parties’ agreed final figure. The absence…

An assignee of rights arising on insolvency under rule 4.90 of the Insolvency Rules 1986 receives the right to have a single account taken and to recover the…

On a late application to adjourn a trial, the court must apply the overriding objective and assess the parties’ conduct, whether delays can be overcome…

On an application for an interim payment on account of costs, the court should ordinarily order payment before detailed assessment, particularly where the…

A dispute for adjudication requires a communicated claim, assertion or position which the other party expressly rejects or does not accept. The dispute is…

Adjudicators’ decisions will ordinarily be enforced summarily where they appear effective and enforceable and no viable jurisdictional or natural justice…

Where substantive proceedings are settled and only costs remain, the court should ordinarily avoid determining the merits. In a monetary claim, the settlement…

Contractual settlement offers are construed objectively in their factual context. Where a party admits liability and offers staged payments of the final…

A valid adjudicator’s decision in a construction dispute must be enforced according to its proper meaning and the context of the dispute referred. A decision…

Where a claimant alleges that damage resulted from one of only two possible causes, the court may compare their relative likelihoods. An apparently unlikely…

Adjudicators’ decisions requiring payment should be enforced summarily where jurisdiction and natural justice are not challenged. A party cannot generally…

An appeal under section 69 of the Arbitration Act 1996 lies for an error in ascertaining or applying the law, but not for findings of fact or an ordinary…

Where contractual documents do not identify the employing party, the court must determine the parties’ objective intention from the relevant facts known to…

On an application for an interim injunction, the court applies the American Cyanamid framework: a serious issue to be tried, adequacy of damages, and the…

Under CPR Part 30.5, a judge in the Technology and Construction Court may order proceedings to be transferred from another High Court Division or specialist…

An adjudicator’s decision should ordinarily be enforced where its enforceability is not challenged on jurisdictional or procedural grounds. The court may…

An adjudicator’s decision remains binding despite an error of law or fact where the adjudicator answered the question referred. The court may finally determine…

A costs capping order under CPR 44.18 requires evidence of a substantial risk that the claimant’s base costs will be disproportionately incurred, together with…

A pleading must state a positive case. Parties cannot use pleadings merely to issue warning shots or reserve insufficiently developed arguments. An allegation…

An adjudicator’s decision awarding payment may be set off against a second adjudicator’s decision establishing the other party’s entitlement to liquidated…

A professional consultant may assume strict contractual liability where the consultancy agreement contains an express performance warranty in addition to a…

For contribution purposes, liability may arise on any legal basis, including negligence, breach of contract, breach of statutory duty, nuisance or interference…

Where proceedings are agreed to belong in the Technology and Construction Court, the choice between London and a regional TCC centre is determined by the…

Under article 5(1)(a) of Council Regulation 44/2001, a defendant domiciled in one Member State may be sued in another where that is the place of performance of…

Adjudication enforcement proceedings are confined to enforcing what the adjudicator decided. A declaration that an employer is entitled to certificates of…

An adjudicator’s jurisdiction is defined by the disputed claim referred, not by every argument or item of evidence advanced. A broad claim may encompass…

An extension of time for serving a claim form under Civil Procedure Rules 1998, rule 7.6(2), is discretionary and must be determined in accordance with the…

On an application to enforce an adjudicator’s decision, a jurisdictional challenge dependent on disputed facts will defeat summary judgment if it has a…

An adjudicator’s decision will generally be enforced unless the adjudicator lacked jurisdiction or committed a material breach of natural justice. Where a…

Where group litigation issues have been substantially resolved, the court may make a costs order before the individual claims are concluded. The successful…

A claim under a property insurance policy is constituted by the insured loss together with any contractual threshold or deductible that must be exceeded before…

For statutory adjudication, a construction contract must be evidenced in writing in a way that records all contractual terms relied upon. A draft order is not…

An adjudicator must act within the jurisdiction conferred by the adjudication notice and the applicable appointment procedure. Under the Scheme for…

A finance hire arrangement may leave the hirer with an implied term that goods are of satisfactory quality, even where the supplier’s warranty covers only…

A surety is discharged by a material variation of the guaranteed contract without consent, unless the alteration is plainly insubstantial or incapable of…

A local authority carrying out extensive reclamation of contaminated land owes a duty to take reasonable care to prevent contaminated dust, mud and waste…

An adjudicator’s decision may establish a debt by necessary and inevitable inference, even where the adjudicator did not expressly order payment. The court…

Where an adjudication decision is binding only until final determination, the losing party who complies with it has a right to seek final determination and…

Under section 111 of the Housing Grants, Construction and Regeneration Act 1996, a withholding notice must be effective in substance, not merely purport to be…

A seller designing and constructing goods to a buyer’s specified general purpose must provide goods reasonably fit for that purpose, including necessary…

A construction contract may be an agreement in writing for the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996 even…

Architects’ fee instalments calculated by reference to a project programme were not automatically payable in full merely because time had elapsed. The…

Disclosure under CPR Part 31.6 is confined to documents on which a party relies, which support another party’s case, or which adversely affect its own case.…

A contractual reference to statutory insolvency events must be construed according to the words used and their commercial context. There is no presumption that…

On an application made within the period for serving a claim form, the court has a discretion under CPR 7.6(2) to extend time. The rule imposes no threshold…

The exclusions in section 105(2)(c) of the Housing Grants Construction and Regeneration Act 1996 should generally receive a narrow construction. They exclude…

Contractual notice provisions governing adjudication must be construed according to their wording. Where a clause requires delivery personally to a specified…

Pleadings must identify the parameters and general nature of the case, particularly in professional negligence claims. Detailed allegations of breach…

A regular default judgment may nevertheless be set aside where the defendant has a real prospect of successfully defending the claim or there is some other…

A defendant may preserve its right to seek a stay for arbitration despite failing to raise arbitration during the pre-action process. However, under paragraph…

An application to set aside judgment in default under Civil Procedure Rules 1998, Part 13.3, requires the defendant to show either a real prospect of…

Mediation communications are generally confidential as between the parties and the mediator. That confidentiality may be enforced by the mediator even where…

An after-the-event insurance policy may be disclosable where it is integral to group litigation, particularly where the proceedings would not have been pursued…

For proceedings under regulation 47(7) of the Public Contracts Regulations 2006, a notice must identify the actual breach relied upon and state the intention…

Construction contracts should be read as a whole, giving effect to each provision where possible and adopting a sensible commercial interpretation.…

An adjudicator’s decision will generally be enforced unless there is a jurisdictional defect or a breach of natural justice. Where the adjudication provisions…

A party seeking recovery of a settlement payment from a contractual indemnifier need not prove that it was liable to the third party on the balance of…

Pleadings must identify a present claim, the material facts supporting it and the remedy sought. They cannot reserve a possible future cause of action or plead…

A manufacturer may owe a duty to warn users of an identified serious danger emerging after manufacture. The warning must make users as safe as reasonably…

Where confidential matters justify restricting public access to statements of case, the court may order under the Civil Procedure Rules 1998 that a non-party…

Valid adjudication decisions under a construction contract must generally be enforced promptly. Where two valid and enforceable decisions affect each other…

Pre-action disclosure under CPR 31.16 requires more than a real prospect that disclosure may assist the litigation. The applicant must first show that the…

When setting aside a regular default judgment, the court may impose conditions, including security for costs, under the Civil Procedure Rules. Conditions must…

For a mandatory interim injunction, the court applies the American Cyanamid framework, while recognising that a positive order may create a greater risk of…

Under section 1 of the Defective Premises Act 1972, whether a dwelling is fit for habitation is a question of fact. The test covers both dangerous defects and…

An adjudicator’s decision is temporarily final and must ordinarily be paid and enforced, even where the paying party has begun arbitration on the underlying…

An adjudicator’s contractual right to payment depends on an agreement with the relevant party, which may arise expressly or by conduct. A responding party that…

A contractual obligation to provide access to personnel and documents for a full and systematic review of services may survive completion of those services…

Acceptance of a claimant’s Part 36 offer after the relevant period does not create an inferred presumption of indemnity costs. Where the applicable rule is…

Where the existence of an arbitration agreement is disputed, the court must first determine whether an agreement exists and covers the dispute. If no such…

Whether a construction contract is for a fixed price or for reasonable remuneration depends on the parties’ agreement, objectively assessed in its factual and…

On an application to amend, a party may not reopen an issue already determined in earlier proceedings or at an earlier stage of the same action. Issue estoppel…

An application under section 68 of the Arbitration Act 1996 requires both serious irregularity and substantial injustice. A tribunal may reject a claim on the…

On an application for pre-action disclosure, the respondent normally receives its costs under CPR Part 48.1. The court may depart from that rule where it was…

Pre-action disclosure may be ordered where the parties are likely to be parties to subsequent proceedings, the documents would fall within standard disclosure…

Preliminary issues are generally unsuitable for early determination where they depend on substantial factual disputes, oral evidence, or evidence likely to…

Adjudicators’ decisions should be enforced summarily unless there is a jurisdictional defect or material breach of natural justice. A pending arbitration or an…

An adjudicator may correct a patent error only where the contract permits a narrow slip rule. The correction must give effect to the adjudicator’s first…

An adjudicator must give sufficient reasons to show that all essential issues properly referred to him have been decided and to explain the conclusions…

A barrister’s professional standard is that of an ordinarily skilled advocate competent to handle the type and weight of work. Liability does not arise merely…

For adjudication purposes, a dispute generally crystallises when a claim is not admitted. Whether that has occurred depends on the claim, the contractual…

An adjudicator’s decision will ordinarily be enforced summarily, subject to jurisdictional or natural-justice challenges. A later settlement does not…

In ongoing adjudication proceedings, the court may determine finally under CPR Part 8 whether contractual adjudication provisions were incorporated and whether…

The TCC has jurisdiction to intervene in an ongoing adjudication by granting declaratory relief concerning jurisdiction or a serious prospective breach of…

Permission to appeal an arbitration award under Arbitration Act 1996, section 69, requires a genuine question of law satisfying the statutory conditions. A…

In adjudication enforcement proceedings, the scope of a dispute is determined by construing the notice and referral in their commercial and factual context. A…