High Court: Technology and Construction Court judgments, 2016

Costs are determined by the overall justice of the litigation. The general rule that costs follow the event does not require an automatic reduction merely…

An amendment will be refused where the proposed allegation has no real prospect of success. A main contractor is not vicariously liable for the negligence of…

Where damages are payable in a foreign currency, the court may express the judgment in sterling if that currency most accurately reflects where the claimant’s…

For the purposes of the second Francovich condition, a contracting authority’s failure to award a procurement contract to the tenderer whose bid was the most…

A certificate of non-completion under a construction contract is cancelled when an extension of time is granted, including where the extension is granted after…

Early specific disclosure in procurement proceedings is exceptional and fact-sensitive. The court must balance the unsuccessful tenderer’s need for prompt…

An adjudicator cannot ordinarily determine whether a contract exists at all where one party has clearly reserved its jurisdictional objection. Agreement to the…

In deciding costs under Civil Procedure Rules 1998, Part 44.2, the court starts with the unsuccessful party paying the successful party’s costs, but must…

An application for early specific disclosure requires a proper basis for disclosure before close of pleadings, demonstrated by an important or significant…

A settlement offer referring expressly to Part 36 should, where possible, be construed as an effective Part 36 offer. The fact that it was made before…

In a competing-theories causation case, the court may analyse and eliminate possible causes. It must nevertheless stand back and decide whether the claimant’s…

Joinder of a new defendant requires a dispute or connected issue falling within CPR 19.2(2), and a claimant cannot be compelled to litigate against a party…

Challenges under Arbitration Act 1996 section 68 are concerned with serious procedural irregularity and substantial injustice, not with re-evaluating evidence…

Contractual dispute-resolution provisions are ordinarily enforceable, and court proceedings brought in breach of them will usually be stayed. A party is not…

In an application to lift the automatic suspension of a public procurement contract award, the court applied an approach akin to American Cyanamid. The…

A court should generally recognise a simple contract where parties have instructed and performed work, even though they contemplated a later formal agreement.…

In a split trial, costs need not await the assessment of damages. The court may defer liability costs where there is a real possibility that the claimant will…

Where proceedings are issued without abusive conduct, an underpayment of the issue fee does not prevent the claim from being “brought” for limitation purposes…

An adjournment should be granted where late disclosure of material documents places the opposing party in an impossible position when preparing for trial. In…

A contractor supplying fabricated structures must achieve the contractual standard of workmanship, not merely exercise reasonable skill and care in following…

A project monitor retained by a lender must exercise reasonable care and skill in checking drawdown applications, monitoring progress and variations, and…

Adjudicators’ decisions are enforceable despite errors of fact, law or arithmetic, provided the adjudicator decided the dispute referred and did not re-decide…

A letter of intent may create a binding interim contract while the parties negotiate a later replacement contract. Work performed under that letter is not, by…

The statutory payment regime under the Housing Grants, Construction and Regeneration Act 1996 regulates cash flow. It does not ordinarily determine the…

Adjudication decisions will ordinarily be enforced summarily because adjudication provides interim finality. The court will decline enforcement for breach of…

Adjudication decisions under the Construction Act are binding and enforceable on an interim basis until the underlying dispute is finally determined. A party…

A contractual dispute-resolution clause limits the court to questions of law arising from the dispute referred to adjudication. On a de novo construction of a…

The court has a wide discretion to impose conditions when permitting a party to rely on replacement expert evidence. Disclosure of the first expert’s report…

Adjudicators’ decisions are ordinarily enforced on an interim basis, even where the adjudicator may have made an error of fact, law or procedure. The court may…

An adjudicator’s decision is enforceable where the parties objectively agreed an extension of time, even if one party maintained a jurisdictional reservation.…

A settlement requires acceptance of an offer on its stated terms. A response which proposes different terms, leaves material matters unresolved, or…

A claim previously decided cannot generally be reopened by recasting it or relying on changed circumstances. Claims arising from a later, distinct breach may…

A party may confer jurisdiction on an expert determination by agreement, waiver or estoppel arising from words and conduct, even where the contract does not…

In a public procurement challenge, the court’s role is supervisory. It must not re-mark tenders, but may intervene where a contracting authority has made a…

A professional is negligent where the advice given falls outside the range reasonably available to a competent member of that profession. In structural…

On an application to enforce an adjudicator’s decision, the court identifies the dispute by analysing the notice of adjudication, referral and decision…

Where a claim has been properly brought within the limitation period, an application to amend the claim form to increase its value is governed principally by…

Section 82 of the New Roads and Street Works Act 1991 imposes strict liability for expenses reasonably incurred in repairing damage to apparatus in the street.…

On a summary judgment application to enforce an adjudicator’s decision, the court must refuse judgment where the contractual basis for the adjudicator’s…

A term may be implied into a detailed commercial agreement only where it is necessary to give the agreement commercial or practical coherence, or where it is…

For summary judgment, the claimant must show that the defence has no real prospect of success. A defence is unsuitable for summary determination where disputed…

In construing a construction contract, the court must ascertain what reasonable parties would have understood from the language read in its commercial context.…

A solicitor or barrister is required to perform the tasks falling within the agreed retainer and to give advice reasonably incidental to those tasks. The scope…

Forum non conveniens cannot justify staying proceedings against a defendant domiciled in England where Owusu v Jackson applies. The court nevertheless retains…

On an application to lift an automatic suspension in public procurement proceedings, damages are assessed by reference to the interests of the party seeking…

In a civil claim based on competing explanations, the claimant retains the burden of proving its case on the balance of probabilities. The court may analyse…

An adjudication clause covering disputes arising under or in connection with a construction subcontract may extend to a dispute about whether the parties…

Under a business sale agreement transferring responsibility for construction liabilities, liability for defects depended on the contractual wording. Actual…

Under a construction sub-contract providing for revised or further revised periods of completion, an extension of time operates by revising the existing…

On an appeal on a question of law from an arbitrator, the court accepts the arbitrator’s factual findings. It intervenes on mixed questions of fact and law…

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

A procurement for enforcement agency services was a services concession contract and was therefore outside the Public Contract Regulations 2015. A claim…

A statutory sewerage undertaker may owe a common-law duty in nuisance where the complaint concerns operational failures, such as inadequate maintenance or…

In an insurance policy excluding avoidance except for “deliberate or fraudulent non-disclosure”, deliberate non-disclosure means an intentional failure to…

A specifically drafted contractual regime for liquidated damages may operate independently of a general employer’s claims procedure. The court must construe…

The scope of an adjudication reference may extend beyond the precise wording of the notice. A defence may widen the ambit of the dispute where it responds to…

Under a construction contract incorporating a statutory interim-payment regime, a contractor’s application must be an unambiguous statement of the sum…

Contractual provisions must be construed as a coherent whole. The court identifies the meaning reasonably conveyed by the language in its documentary, factual…

Costs budgeting is a prospective case-management exercise rather than a detailed assessment in advance. The court should use a broad, impressionistic approach…

In a construction contract, responsibility for obtaining planning permission is ordinarily implied to rest primarily with the employer, because the employer…

An adjudicator’s jurisdiction is determined by the nature, scope and extent of the dispute identified in the notice of adjudication. Where a notice raises the…

In adjudication enforcement proceedings, a dispute will ordinarily crystallise when a claim has remained unaccepted for a reasonable period. Outstanding…

Where a construction contract provides an adequate payment mechanism, the payment provisions of the contract govern the payment dates. If the payer fails to…

A construction payment amendment must be construed, where reasonably possible, so that it complies with the Housing Grants, Construction and Regeneration Act…

An adjudicator appointed under the Scheme for Construction Contracts may adjudicate more than one dispute at the same time only with the consent of all parties…

A non-exclusive English jurisdiction clause creates a strong prima facie case for retaining English jurisdiction. The party seeking to avoid that contractual…

In determining the contracting party to an oral agreement, the court applies an objective test. The person whose words or conduct form the agreement is the…

A contractual reference to a 10-year NHBC warranty does not ordinarily create a limitation period. Its meaning depends on the language of the clause and the…

A Part 36 offer need not reflect an outcome which the court could technically order. In a binary liability case, an offer to accept a discounted proportion of…

Where parties to a construction contract agree the amounts and intervals of interim payments, that agreement governs the payment regime. The payment provisions…

Whether a demand under an on-demand guarantee satisfies any formal requirements depends on the proper construction of the guarantee itself. General…

In deciding whether an adjudicator approached issues with a closed mind, the court must consider all relevant circumstances known when the challenge is…

A party may contract on another party’s written standard terms of business even though only some of those terms are incorporated. A contractual provision…

A contract for professional services requires objectively ascertainable agreement, sufficient certainty, an intention to create legal relations and…