High Court: Technology and Construction Court judgments, 2013

Specific performance may be ordered where damages would not adequately protect the claimant, including where the defendant’s financial position makes…

On an application to strike out or obtain summary judgment, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success.…

A contractor’s failure to provide a revised programme may be a material breach where the programme is essential to monitoring progress and coordinating the…

A fixed-price subcontractor’s obligation is determined by the contractual documents, including expressly incorporated amendments. A stated pipe size forming…

Adjudicators’ decisions should be enforced summarily, even where the adjudicator expressed reservations about a difficult conclusion. A pending winding-up…

The scope of an adjudication is defined by the Notice of Adjudication. A Referral Notice cannot narrow that scope where the Notice plainly encompasses the…

An adjudicator’s decision may be jurisdictionally valid and prima facie enforceable even where the successful party is subject to a company voluntary…

An application to strike out pleaded defences should ordinarily be made before the court has established a procedural framework for their trial. A late…

Costs should reflect the parties’ conduct, the proportionality of the costs incurred and the requirements of the overriding objective. Where opposition to an…

An adjudicator may decide an issue on a basis for which neither party expressly contended if the relevant material was before the parties and the resulting…

An arbitration award should ordinarily be honoured when due. A short period may be allowed to arrange payment, but delay is not thereby excused. Where a party…

A collateral contract or contractual warranty cannot be inferred from a funder’s involvement in a construction project without a clear and sufficiently certain…

A negligence claim for economic loss caused by defective goods generally requires physical damage or injury to something other than the defective item itself…

In adjudication enforcement proceedings, the scope of the referred dispute is identified by examining the essential claim, the parties’ communications and the…

Interim relief may restrain a beneficiary from calling an on-demand performance guarantee where the underlying contract clearly and expressly prevents the…

Under rule 8(2) of Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, proceedings against a consumer may be brought only in the courts of the part of…

When a party seeks permission to replace an expert after the pre-action process has begun, the court may require disclosure of earlier reports or documents…

Under section 107(5) of the Housing Grants, Construction and Regeneration Act 1996, an exchange of written submissions may establish an agreement in writing…

Expert evidence should be admitted where it may assist the court on issues in dispute and is reasonably required for the fair resolution of the proceedings.…

Whether permission is needed to advance a new head of loss depends on the substance of the case, not the label attached to it. Pleadings must identify the real…

Where an amendment application fails because the claimant cannot satisfy a condition requiring adequate particulars, the court may order the claimant to pay…

Under the amended overriding objective, the court must deal with cases justly and at proportionate cost. This requires particular attention to saving expense…

The Late Payment of Commercial Debts (Interest) Act 1998 applies to qualifying debts arising from an obligation to pay the contractual price for goods or…

For an interim injunction restraining a demand under an on-demand bond or guarantee, the claimant must show a strong case that the underlying contract prevents…

Statutory interest on damages for commercial loss is generally assessed by reference to the normal commercial rate at which the claimant would have had to…

In a detailed construction contract, an obligation to proceed with due diligence is assessed objectively by reference to the contractual objectives, programme…

Contract terms must not undermine the statutory adjudication scheme by postponing payment of an adjudicator’s award or deterring a party from adjudicating.…

Indemnity costs require conduct sufficiently unreasonable to justify departing from the standard basis. A party does not act unreasonably merely by advancing a…

A referral notice under the Scheme starts time running when it identifies and refers the dispute in writing. Failure to provide supporting documents at the…

Permission to amend a statement of case should be refused where the proposed pleading remains incoherent, vague or legally unsustainable after repeated…

Transitional provisions for procurement remedies apply according to their clear terms. A contract-award procedure begun before the stated date remained…

Costs budgets must be proportionate and reasonable in relation to the value and complexity of the dispute. The assessment may allow for necessary expert…

An adjudicator may determine a broadly referred payment dispute by selecting a legal and contractual permutation arising from the parties’ submissions. A party…

A contract naming an existing company will not be treated as a contract with another company merely because the latter performed the work or was intended…

Liability in nuisance for tree-root subsidence requires foreseeability of the particular risk posed by the particular tree. General awareness that trees may…

Early specific disclosure in procurement proceedings is exceptional and must be justified by the needs of an imminent application or hearing. The request must…

A collateral warranty may constitute a construction contract under Part II of the Housing Grants, Construction and Regeneration Act 1996. The question is…

In assessing damages for construction negligence, the claimant must establish the loss claimed, but the defendant bears the onus of proving a failure to…

An implied contractual licence requires, viewed objectively, an intention to create legal relations. Where parties have not addressed payment or continuation…

On an application to amend, the court should not conduct a mini-trial or reject a realistically arguable claim merely because it may fail. The claimant must…

A beneficiary under an architectural collateral warranty is not treated as responsible for the contractor’s negligence merely because the warranty treats the…

An occupier may owe a duty to protect users of adjoining land from dangers arising from visitors’ activities, including driving or parking vehicles. The duty…

Interest on damages normally runs from the date the claimant was deprived of the money, which may be later than accrual of the cause of action. A claimant’s…

Where a monetary Part 36 offer falls short of the judgment by any amount, it does not attract the automatic costs consequences of Part 36. The court should not…

Amendments to a procurement claim which introduce complaints about the evaluation of a tender may constitute new claims, even where they arise from the same…

Whether a party may set off against an adjudicator’s award depends primarily on construing the adjudicator’s decision in its contractual and procedural…

An arbitration agreement may remain effective even where arbitration follows negotiation, dispute-board involvement and consensual procedures. The court must…

An adjudicator’s error of fact, law or procedure does not ordinarily justify refusing enforcement. The court will intervene where there has been an actual or…

An occupier or contractor is required to take reasonable care when investigating utility services and carrying out works; the obligation is not absolute. In an…

Applications for specific disclosure before an urgent application to lift a statutory suspension must be determined by reference to fairness, necessity and…

In exercising the costs discretion after settlement, the court must assess what is just in the circumstances of the case. Relevant matters include the parties’…

An adjudicator’s decision will ordinarily be enforced, even where the successful party is insolvent, unless the paying party has real grounds for challenging…

An architect responsible for design coordination must design, or procure the design of, architectural features and provide the criteria needed for delegated…

Proceedings are commenced under the Civil Procedure Rules when the court issues the claim form, not when it is served. Contractual wording requiring…

Amendments may be permitted where they rely on already pleaded breaches, even if they claim substantially increased damages or total replacement costs. A later…

An indemnity costs order requires conduct or circumstances taking the case outside the ordinary run of litigation. The mere fact that a party lost, even…

A professional is not negligent merely because an inspection fails to identify the true cause of a defect. The question is whether the advice fell below the…

A photocopy of a sealed claim form sent by Document Exchange will generally not constitute valid service within the jurisdiction. The relevant document is…

Indemnity costs require conduct unreasonable to a high degree or circumstances taking the case outside the norm. An arguable but unsuccessful claim does not…

A contractual completion date may be extended where delay is caused by the other party’s acts or omissions and falls beyond the consultant’s reasonable…

Adjudication decisions should generally be enforced promptly because adjudication is intended to maintain cashflow. A stay of execution may be justified where…

On an application under section 18 of the Arbitration Act 1996, the court should not determine underlying disputes about the contract or arbitration agreement.…

A party required to pay under an adjudicator’s temporarily binding decision does not automatically acquire a new cause of action, running from payment, to…

The court has a discretion to extend time for serving Particulars of Claim after the claim form has been served, but the discretion must be exercised…

A repairing covenant requires deterioration from a previous physical condition and remedial work judged against the age, character and locality of the…

In adjudication enforcement proceedings, a natural justice challenge is waived only by a clear and unequivocal act, undertaken with knowledge of the relevant…

A dispute referred to adjudication may contain several issues or financial strands. Whether it is one dispute is a question of fact, assessed against the…

Discretionary interest is primarily compensatory rather than punitive. The usual starting point is interest from the date loss was incurred, subject to the…

A contractual obligation to complete a development so that individual premises are fit for occupation and the building complies with regulatory requirements…

In valuing a contractual variation involving both omitted and additional work, the Engineer must identify the contribution made by the omitted work to the…

Commercial contracts must be interpreted objectively by reference to the contract as a whole and the background reasonably available to the parties. Where…

A repairing covenant is assessed by reference to the age, character and locality of the premises, and to the requirements of the relevant class of tenant, at…

In procurement challenges, an unsuccessful tenderer is generally entitled to prompt disclosure of essential contemporaneous material showing how the evaluation…

Leave to appeal an arbitral award under Arbitration Act 1996, section 69, requires a clear-cut satisfaction of the statutory threshold. A construction issue…

Approved costs budgets are not ordinarily revised or rectified merely because a party later identifies an omission or under-valuation. Parties are expected to…

A construction professional is liable for loss caused by negligent design, inspection or coordination, but damages must reflect what would probably have…

A binding compromise may arise from communicated acceptance even though the parties later expect to record it in a Tomlin order. The essential question is…

A party should not obtain an increased payment into court merely because a claim has been enlarged or additional evidence has been assembled after an earlier…

Under section 106 of the Building Act 1984, compensation is payable where a local authority’s exercise of its statutory powers causes damage which would…

For adjudication under a construction contract, the fundamental requirement is referral of the dispute to the adjudicator within seven days of the notice. A…

Under section 3(5) of the Charging Orders Act 1979, the court has a discretion to discharge or vary a charging order. The discretion is not exercised lightly.…

Solicitors and counsel responsible for drawing up a court order must produce a draft that fairly reflects the directions actually given. They must not use the…

In a terminal dilapidations claim, damages are limited to the lower of the reasonable cost of remedying the breaches, including consequential loss, and the…

Under rule 32.14 of the Civil Procedure Rules 1998, a false statement verified by a statement of truth may amount to contempt where its maker knew it was false…

For the purposes of the residential occupier exception in section 106 of the Housing Grants (Construction and Regeneration) Act 1996, occupation is not…

A construction contract may allocate primary responsibility for safe working to the contractor while requiring the employer physically to isolate its own plant…

Under section 1 of the Defective Premises Act 1972, the statutory duty applies where work for the provision of a dwelling is arranged in the course of a…

Litigation privilege must be established by the party asserting it. Documents are privileged only where contemplated litigation was their sole or dominant…

Permission to appeal an arbitral award on a question of law under Arbitration Act 1996, section 69, requires satisfaction of the statutory conditions and…

Section 68 of the Arbitration Act 1996 is a longstop remedy for serious procedural irregularity causing substantial injustice. It does not provide a route for…

CPR 3.1 confers wide case-management powers which must be exercised to further the overriding objective, rather than to punish procedural default. The court…

A preliminary issue should be ordered only where it offers a real procedural advantage. The court must consider whether it may dispose of all or a substantial…

In adjudication enforcement proceedings, an adjudicator’s decision will generally be enforced even if the adjudicator may have erred in fact or law. A previous…

On an application for security for costs, the defendant must first establish a threshold condition under CPR 25.13. The burden is to show reason to believe…

On an application for summary judgment or strike out, the court must decide whether the claim has a realistic prospect of success without conducting a…

Damages for repudiatory breach are assessed to restore the claimant to the position that proper performance would have produced. Overpayments and reasonable…