High Court: Technology and Construction Court judgments, 2010

For a stay under Arbitration Act 1996, the court must be satisfied that the parties agreed an arbitration agreement covering the dispute. Incorporation of a…

A solicitor must exercise independent professional judgment when relying on specialist counsel. Reliance is generally permissible, particularly in a specialist…

In adjudication enforcement proceedings, a party cannot refer a dispute to a second adjudicator where the same or substantially the same dispute was decided in…

A construction subcontract is not concluded where the parties remain divided over essential obligations, price, risk allocation or contractual machinery. The…

When proceedings automatically suspend entry into a public contract, the court must assess an application to lift the suspension as if the statutory suspension…

An indemnity must first be construed to identify the liabilities, claims, proceedings or judgments it covers. Clear wording is required before an indemnifier…

An English court has no jurisdiction under section 69 of the Arbitration Act 1996 to hear an appeal on a question of foreign law applied by the arbitral…

A party repudiates a commercial contract only where, viewed objectively in all the circumstances, its conduct clearly shows an intention to abandon and refuse…

Passing off may arise where a defendant uses domain names closely resembling a claimant’s domain name, with the intention of diverting potential clients and…

An arbitrator’s appointment does not ordinarily end merely because the parties settle after arbitration has begun. The parties’ arbitration agreement…

On an application for summary judgment or strike out, the court may test a pleaded case against the claimant’s proposed evidence where witness statements have…

A pleading alleging breach of contract or professional negligence must state the material facts. It must identify the alleged acts or omissions, explain the…

Indemnity costs require conduct or circumstances taking the case out of the norm. Unreasonableness may suffice and moral condemnation is unnecessary. The court…

Contractual assumptions concerning ground conditions must be interpreted according to the wording incorporated into the contract. An assumption that inflowing…

Contractual specifications are construed as a whole and with commercial and engineering common sense. A requirement for a double vapour barrier applied…

When deciding whether to order security for costs, the court must balance the claimant’s ability to pursue a genuine claim against the defendant’s protection…

Section 12(1) of the Party Wall etc. Act 1996 permits an adjoining owner to seek security where the building owner proposes work in exercise of rights…

A clear commercial settlement must be enforced according to its terms. Where payment is required without set-off before a contractor’s obligation to remedy…

A contractual insolvency or set-off provision cannot override the obligation to comply with an adjudicator’s decision. Where the successful party enters…

Where costs follow the event and are assessed on the standard basis, the court scrutinises each claimed item for reasonableness and proportionality. It may…

Ordinary contractual disputes remain civil and commercial matters for the purposes of the Jurisdiction and Judgments Regulation 44/2001, even where one party…

Where a long-term outsourcing agreement provides for termination and an orderly handover, its exit provisions must be construed as a coherent whole, giving…

An arbitration clause requiring disputes about an insurer’s liability to be referred within a specified period may provide an exclusive remedy, including where…

A quantity surveyor’s contractual duty ordinarily concerns valuation, not the inspection or quality of construction work. Where the building contract requires…

A construction contract falls within the statutory adjudication regime only where all its terms are in writing or evidenced in writing. An adjudicator lacks…

A construction professional does not escape responsibility merely because specialist advice or design has been obtained. The professional may, however…

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

An arbitrator’s robust case management does not, without more, establish apparent bias. The court must assess all relevant circumstances and ask whether a…

An arbitration clause covering disputes about the application of an insurance condition may extend to whether the condition is engaged by alleged…

Where a construction contract contains both an adjudication scheme and an arbitration clause, the arbitration clause does not ordinarily justify staying…

An adjudicator may inquire into his own jurisdiction, but his conclusion is not binding unless the parties expressly or impliedly agree that it will be. An…

Under Arbitration Act 1996, the English court may support an arbitration whose seat has not yet been designated where there is a sufficient connection with…

The court may determine, when making or giving effect to a costs order, whether particular expenditure should be recoverable. In deciding whether expert costs…

In adjudication enforcement proceedings, a party is not generally barred from relying in court on a different jurisdictional formulation merely because its…

The successful party is the usual starting point for a costs order, but the court retains a broad discretion to make an order that reflects the justice of the…

A concurrent duty of care in tort may exist between parties to a contract for services, particularly where the contract requires reasonable care and skill…

A challenge under section 68(2)(d) of the Arbitration Act 1996 requires proof that the tribunal failed to deal with an issue put to it and that the failure…

Where negligence causes physical damage to a claimant’s property, consequential loss of use, profit or revenue may be recovered if causation is established and…

Costs are assessed by reference to the work reasonably required by the issues, the material presented, and the importance and value of the dispute. On the…

On an application to enforce an adjudicator’s award, the court must assess whether the resisting party has a real prospect of establishing apparent bias at…

Under section 18(1) of the Landlord and Tenant Act 1927, the court first assesses common-law damages reasonably compensating the landlord for breach of a…

A construction contract may be frustrated by the illness of a sole-trader contractor where the contractor’s personal involvement, project-management skills and…

Withdrawal of a pre-action admission does not ordinarily constitute an abuse of process without bad faith. Where the withdrawal is said to obstruct the just…

A contractual obligation to act in good faith requires parties to have due regard to each other’s legitimate interests and to conduct themselves consistently…

A successful party may receive a proportion, rather than all, of its costs where it pursued a wide-ranging case and failed on substantial issues, particularly…

Construction works on adjoining property may constitute nuisance where their nature, duration, timing, noise, vibration or other interference exceeds what a…

In case management, the court must apply the overriding objective proportionately, particularly where an exercise would consume substantial time and cost…

Under the statutory adjudication scheme, a valid adjudicator’s appointment requires the notice of adjudication to be given to the responding party before the…

Part II of the Housing, Grants, Construction and Regeneration Act 1996 does not prevent a construction contract from requiring adjudication before arbitration.…

In fixing costs proportionately, the court should first identify the party successful overall. It should then consider the litigation’s context, the parties’…

Contractual conditions precedent are construed by applying the ordinary principles of contractual construction. They are not subject to a separate rule of…

Contractual adjudication and arbitration provisions may give a party a choice between the two procedures. Wording making arbitration subject to adjudication…

For a construction contract to be “in writing” under the Housing Grants Construction and Regeneration Act 1996, all express terms must be recorded in, or…

Rectification for unilateral mistake requires proof that one party mistakenly believed the document contained a particular term, the other party knew of the…

A valuer may owe a duty to take reasonable care when making material statements in a valuation report, in addition to the duty concerning the valuation figure…

On an application to strike out or obtain summary judgment, the court should not finally determine a developing and fact-sensitive question of negligence law…

In a contractual damages claim, recoverability, factual causation and subsequent intervening events are separate questions. The court must first identify…

Under the Housing Grants, Construction and Regeneration Act 1996, exclusions from construction operations are construed narrowly and applied to the specified…

When exercising the discretion to make a charging order or order for sale under CPR r.73.10, the court should consider all relevant circumstances. The size of…

In a business software contract, exclusion clauses must be construed in their contractual and factual context. Where the supplier recommended the system as…

Confidentiality does not, by itself, justify withholding relevant procurement documents from inspection. The court must balance confidentiality against the…

An adjudicator must address the dispute referred, including any legitimate defence necessarily encompassed by a monetary claim. A deliberate and materially…

Where a claimant company may be unable to pay an opponent’s costs, CPR Part 25.13 gives the court jurisdiction to consider security for costs and a broad…

Contractual adjudication provisions which materially fetter a party’s statutory right to refer a dispute at any time, including by imposing liability for the…

In substantial construction litigation, case management must remain proportionate to the issues and likely value of the dispute. Delay claims should identify…

On an application for strike out or summary judgment, a defence must identify the allegations denied, explain the reasons, and state any alternative case. A…

A freezing order may be justified where there is solid evidence of a real risk that assets will be dissipated to avoid enforcement of a judgment. Broken…

An unless order should be made only after careful consideration of whether the sanction is appropriate in all the circumstances. The court should also allow a…

Under a construction contract, practical completion requires completion of the construction work, subject only to genuinely minor items capable of being…

Under Conditions 57 and 58 of the GC/Works/1 contract, the value of work carried out must in principle be calculated by reference to the value of that work…

The court has jurisdiction under section 37 of the Senior Courts Act 1981 to restrain the pursuit of an adjudication. The same principles apply as when…

An interim order under section 252 of the Insolvency Act 1986 does not reserve exclusively to the court that made the order the power to grant leave for…

When a proposed Part 20 claim cannot be tried with the main claim without moving an imminent trial, the court must balance the connection between the claims…

On a summary judgment application, the court may determine pure questions of contractual construction and law, while avoiding a mini-trial on disputed…

On an application to adjourn a fixed trial, the court must balance the certainty and cost consequences of retaining the trial date against any risk of…

In a limitation dispute involving Limitation Act 1980, a claimant’s reliance on section 14A does not, by itself, waive privilege in investigations or advice…

Adjudication decisions are to be enforced unless it is plain that the adjudicator decided a question not referred or acted in an obviously unfair manner. An…

Contractual obligations arising after expiry of a fixed-term commercial agreement must be identified from the parties’ conduct and commercial context.…

On summary enforcement of an adjudicator’s decision, the court does not review whether the decision was right or wrong. It considers jurisdiction and fair…

Part 8 is appropriate where the claimant seeks the court’s decision on a question unlikely to involve a substantial dispute of fact. A court may determine a…

In a domestic refurbishment contract, the court must identify the contractual documents and cannot imply terms merely because they would be convenient. A…

On an application to enforce an adjudicator’s decision, summary judgment should be refused where a defence has a real, although weak, prospect of success and…

An adjudicator may determine whether an employer’s contractual determination was valid and identify its financial consequences, even where the contract…

A builder may owe a client a concurrent duty of care in tort for economic loss arising from the negligent performance of building services. The duty is based…

In commercial litigation involving claims and counterclaims, the party who ultimately receives payment will generally be regarded as the successful party. That…

An adjudicator’s decision remains enforceable despite factual, legal or mathematical errors, provided the adjudicator acted within jurisdiction and complied…

A court should not strike out proceedings prematurely where the claimant has a subsisting right to apply to set aside a default judgment and the claim raises…

For summary enforcement of an adjudicator’s decision, the defendant must show a real prospect of successfully defending the claim or another compelling reason…

A building owner undertaking excavation beside an adjoining building must investigate the foundations, comply with the Party Wall etc Act 1996, design…

An indemnity provision in a building warranty generally gives rise to a contractual cause of action when the insured loss is suffered. A notification…