High Court: Technology and Construction Court judgments, 2011

On an application for security for costs by a company in financial difficulty, the court must first decide whether there is reason to believe that the claimant…

A contractual definition of subcontractor’s equipment may extend to project documentation where the documents are required to complete the works and do not…

A term requiring a construction contractor or subcontractor to proceed regularly and diligently will not ordinarily be implied merely because the contract…

An interim injunction may restrain the dissemination of private digital images where the claimant has a reasonable expectation of privacy and is likely to…

A party waives privilege in a document referred to in a witness statement where the document, or its contents, is deployed for use in interlocutory or final…

Where parties have agreed an express contractual indemnity for costs, the court should ordinarily exercise its costs discretion to reflect that agreement. A…

A judgment entered administratively on an admission in an acknowledgment of service is irregular where the admission does not fall within specific procedural…

Proceedings should be transferred to the Technology and Construction Court where the bulk or preponderance of the issues is technically complex, or where trial…

Statutory authority to operate sewage-treatment works does not immunise the operator from nuisance where it fails to conduct the works with all reasonable…

Where a construction contract contains adjudication provisions that materially fail to comply with Housing Grants, Construction and Regeneration Act 1996, the…

On an application for security for costs, the threshold condition must first be established. The court must then exercise its discretion by assessing the…

An adjudicator may award interest on sums exceeding those certified where the contract permits the adjudicator to open up, review and revise certificates. The…

In construing a complex services agreement, the court must read individual provisions in the context of the agreement’s overall scheme and relevant background.…

For an interim injunction, the court must be satisfied that there is a serious issue to be tried and must assess the adequacy of damages and the balance of…

Costs are determined by the overall outcome, while taking account of partial success, conduct and admissible settlement offers. Success on individual issues…

In serial adjudications, the question is whether the later reference concerns the same or substantially the same dispute as an earlier one. The court must…

In deciding whether to adjourn a long trial because of late disclosure, the court must assess whether a fair trial remains possible and whether the affected…

An oral joint venture concerning property development must be determined from the parties’ objectively established agreement. Where no agreed time limit or…

In a civil claim involving several possible causes of a fire, the claimant must prove the alleged cause on the balance of probabilities. The court is not…

An adjudicator’s decision may be enforced summarily even where the same dispute is being litigated. A challenge based only on alleged errors in the…

An adjudicator’s decision may be unenforceable for a serious breach of natural justice without there being a total failure of consideration under the…

Whether contractual terms are incorporated by a signed document depends on the document’s objective contractual effect, assessed in its commercial context. The…

An oral settlement agreement is determined objectively by analysing the parties’ words and conduct, including relevant subsequent conduct. An existing offer…

In commercial litigation, the party obtaining judgment or payment will generally be treated as the overall successful party. The court should begin with the…

Amendments should generally be permitted so that the real dispute can be adjudicated. The court may refuse an amendment where the resulting prejudice cannot be…

A surety is discharged by a variation of the guaranteed contract unless the variation is plainly immaterial, beneficial, or protected by the guarantee. An…

For the purposes of construction adjudication, a dispute generally arises when a claim or assertion is expressly or implicitly challenged. A dispute may…

A lead consultant advising on a housing stock transfer must exercise reasonable care and skill to ascertain whether the business plan and proposed gap funding…

Where a claimant alleges that goods failed shortly after supply, the timing of the failure does not by itself establish breach of the implied term of…

An interim injunction requires a serious issue to be tried, damages to be an inadequate remedy, and a balance of convenience favouring relief. The court must…

Pre-action disclosure is exceptional. The existence of commercial disputes and a possibility of later litigation is insufficient. There must be a real…

Security for costs is discretionary even where defendants advance a counterclaim. The court must examine whether the costs of defending the claim are also…

Pre-trial applications should be managed proportionately and should not ordinarily be attached to a pre-trial review without sufficient hearing time. Further…

A licensing regulator’s power to vary the terms, provisions or limitations of a wireless telegraphy licence does not ordinarily permit it to substitute a…

A contractual time bar should be construed to give it a commercially coherent operation. Where no certificate of practical completion of the services exists…

In a commercial “battle of the forms”, the court applies the traditional offer-and-acceptance analysis unless the parties’ documents and conduct establish a…

Contractual conclusivity provisions may make an adjudicator’s decision conclusive where the contract gives the losing party a defined period to challenge it.…

In procurement challenges under the Utilities Contracts Regulations 2006, time begins when the unsuccessful tenderer knows the basic facts which would…

An adjudicator may adopt a legal or factual approach different from that advanced by either party where the issue was before him, the approach arises from the…

A builder’s contractual obligation to complete a house in a good and workmanlike manner may extend to design and to completion so that the house is fit for…

In negligence claims concerning defects in a building, the court must assess the structure realistically and avoid artificial subdivision into separate…

A party may restart an adjudication where an earlier adjudication became a nullity because no referral was made and no decision was taken. Neither the…

An adjudicator’s determination that one party should pay his fees does not itself establish the amount recoverable. Under paragraph 25 of the Scheme for…

A claimant alleging that fire spread from adjoining premises must prove the relevant causal sequence on the balance of probabilities and show that the loss…

An indemnifier is not bound by a consent judgment against the party seeking indemnity merely because it knew of the underlying claim, conducted the defence and…

Costs under the Civil Procedure Rules remain subject to the court’s broad discretion. The court must consider all material circumstances, including party…

An adjudicator’s error of law or fact on an issue referred to him does not ordinarily provide a defence to enforcement of his decision. A certified interim…

Under the Civil Liability (Contribution) Act 1978, a contribution may include a share of costs paid to the injured third party as part of a settlement…

A lead consultant retained responsibility for coordinating and reviewing specialist subcontractor design where its contract covered the whole design and…

Fiduciary duties in a commercial agency relationship depend on the underlying contract and may apply to only particular activities. An agent’s contractual…

Leave to appeal from an arbitration award under section 69 of the Arbitration Act 1996 requires the statutory conditions to be satisfied. A contractual…

Roaming may amount to carriage of voice or data traffic and to sharing or consolidation of network rights, even where no new physical equipment is installed.…

A guarantee must be construed commercially. Where literal wording produces absurdity or incoherence, it should yield to business common sense. Compliance with…

Under CPR 3.9(1), the court may grant relief from sanctions imposed by a consent order. However, the parties’ agreement is a highly important factor, and the…

In tree-root subsidence claims, liability in nuisance or negligence depends on whether the defendant knew, or ought to have known, of a real and reasonably…

For enforcement of an adjudicator’s decision, jurisdiction is determined by the construction contract and the evidence relied upon, including the parties’…

A claimant acquiring another company’s tort claims may enforce them where the assignment, construed objectively in its factual context, covers the whole claim…

For the purpose of Public Contracts Regulations 2006, proceedings are brought when the court issues the claim form, or potentially when it receives the form…

For limitation purposes, knowledge under Limitation Act 1980, section 14A, does not require certainty or knowledge that the conduct was legally negligent. The…

A fixed-price building contract may be varied by a later agreement, including an agreement made orally or by conduct. The scope of a lump-sum variation is…

An adjudication decision may be enforced where the party challenging jurisdiction has no reasonable prospect of proving that the contract was made without…

The unsuccessful party will ordinarily pay the successful party’s costs. Departure from that rule requires conduct materially connected with the costs of the…

A contractual adjudication procedure in a construction contract survives termination or accepted repudiation. Where the Housing Grants, Construction and…

In a public procurement, a contracting authority must disclose the award criteria, sub-criteria and weightings which it intends to use where they could affect…

Environmental legislation and a detailed permit may materially shape common-law nuisance. Where a landfill operator uses land in accordance with its permit…

An arbitration agreement may be made independently of an underlying contract, including on an ad hoc basis. Its formation is determined objectively, using…

Contractual provisions excluding or limiting damages for delay cannot be circumvented by pleading the same loss as breach of an implied term of reasonable…

Where an application for security for costs fails, the ordinary starting point is that costs follow the event. A successful party may nevertheless receive less…

Contractual adjudication time limits must be construed in their context. A requirement that the referring party send the referral documents within two days of…

For adjudication under the Housing Grants, Construction and Regeneration Act 1996, the contract and all its terms must be made or evidenced in writing. A…

An adjudicator must determine a defence which is properly raised and materially relevant to the dispute referred. A decision is unenforceable where the…

An on-demand bond ordinarily requires the bank to honour a compliant demand, absent clear evidence of fraud. That principle does not prevent the court…

Under CPR Part 19.6, representative proceedings require the representative and represented persons to have the same interest when the claim is begun. The…

An indemnity costs order is compensatory rather than penal. It requires conduct or circumstances taking the case outside the norm, involving unreasonable…

A contractual satisfactory-quality obligation is construed in its contractual context. Where the contract specifies what software must do, compliance with…

A claimant alleging deceit or negligent misrepresentation must prove reliance on the relevant representation and loss caused by that reliance. A claimant…

A party preparing a Scott Schedule in construction litigation must present each alleged defect and the recoverable costs attributable to it with sufficient…

A contractual variation releasing a tenant from a continuing repairing obligation may take immediate effect even though it specifies no commencement date. Its…

CPR 12.8 prevents default judgment against one defendant where entering judgment would prevent the claim being pursued against another defendant. The rule…

An adjudicator must comply with natural justice, but a breach arises only where an undisclosed issue is material and decisive, or of considerable potential…

A technical auditor’s duty is defined by the retainer and its commercial context. The auditor does not guarantee defect-free construction or compliance with…

An on-demand bond must be construed according to its particular wording. Where the bond requires notices or claims supporting the demand, those documents must…

On an application to lift the statutory suspension of a public procurement contract, the court applied the American Cyanamid approach. The claimant had to show…

A supplier of integrated equipment is responsible for ensuring that the equipment complies with the contractual specification and is fit for its intended use…

A party challenging an adjudicator’s jurisdiction must make a clear reservation of its position during the adjudication. A reservation may be established…

In a contribution claim, contractual responsibility for design must be distinguished from an obligation that materials be suitable. An express exclusion of…

An order for indemnity costs requires conduct or circumstances taking the case outside the norm. A defendant’s Part 36 offer, and the claimant’s failure to…

On a standard costs assessment, CFA success fees and ATE insurance premiums must be reasonable and proportionate when separately assessed. The principal factor…

A professional fee must reflect the value of the services actually provided, including the effect of negligent or incomplete performance. Where a fee is…