High Court: Technology and Construction Court judgments, 2017

In a regulated procurement, tender documents must state the evaluation criteria and the consequences of failing a criterion with sufficient clarity to permit…

A performance bond drafted as secondary liability may nevertheless create liability for an unpaid contractual debt arising after the contractor’s insolvency. A…

Where a construction contract provides that a notified figure becomes binding unless challenged within a specified period, the notice must clearly identify the…

Contractual provisions must be interpreted objectively, by considering the natural and usual meaning of the language in its contractual and commercial context.…

An appellate court will interfere with a case-management decision where the first-instance judge erred in law, failed to consider relevant matters, or reached…

A contractual obligation is an indemnity, rather than a guarantee, where its proper construction imposes a primary obligation on the promisor, even if the…

A challenge under section 67 of the Arbitration Act 1996 concerns substantive jurisdiction, not the correctness of a tribunal’s decision on contractual…

Where a construction contract contains a sufficiently broad extension-of-time mechanism, delay caused by prevention, late possession and variations should…

Where Civil Procedure Rules 1998, rule 3.13 permits the court to order otherwise, a written timetable issued by the court office may constitute such an order.…

A modifying agreement must be construed in its contractual context. An obligation to use “fullest endeavours” to achieve a stage by a date is not an absolute…

A supplier of hired electrical equipment may owe continuing contractual and statutory obligations where the agreement requires equipment to remain available…

Substitution of a defendant is appropriate where the wrong party was joined because of that party’s conduct and substitution enables the real dispute to be…

In a public procurement challenge, a contracting authority is required to seek clarification only in exceptional or limited circumstances. The tender must…

Where a contractual termination power is expressly made subject to a further clause, that clause may operate as a condition precedent to termination. The…

An architect retained to provide a full design service must identify and take account of the client’s key requirements and constraints, including the project…

An adjudicator’s decision is binding on an interim basis and will ordinarily be enforced summarily, even where the adjudicator may have made an error of fact…

Part 8 is appropriate only where the question is unlikely to involve a substantial dispute of fact and is framed with sufficient precision to permit a precise…

Indemnity costs require conduct that is unreasonable to a high degree and takes the case out of the norm. A weak but arguable claim will not usually suffice…

Under the Scheme for Construction Contracts, an adjudicator’s appointment is time-limited. The power to resign “at any time” ends when the applicable deadline…

Parties may agree how concurrent delay is to affect extensions of time, subject to statutory restrictions that do not apply to the agreed allocation of delay…

A party may unilaterally withdraw a dispute from adjudication and refer the same, or substantially the same, dispute to a further adjudication. The absence of…

An extension of time to challenge an arbitration award is exceptional. The court must give substantial weight to the statutory policy of speedy finality and…

Where a valid payment notice has been given and no pay less notice served, the sum identified by an adjudicator is payable and must be enforced. Alleged…

In a procurement challenge, a claimant must plead its case within the short timetable required by the Civil Procedure Rules 1998. An application for more time…

Reliance damages compensate for the loss of the contractual bargain and are not necessarily claims for lost profits, revenue or savings. Wasted expenditure may…

A contractual provision is void for uncertainty only where the court cannot identify the parties’ objective agreement or cannot safely prefer one equally…

Where contractual documents are expressly incorporated into a principal agreement, they will ordinarily form part of one contractual scheme. Payment provisions…

Relief from sanctions for late service of a costs budget requires application of the three-stage Denton v TH White Ltd approach. A ten-day delay is capable of…

The court may determine liability-trial costs before the final resolution of split litigation where the parties need certainty and the costs can fairly be…

Summary judgment should be refused where the defendant has an arguable defence and the court cannot conclude that there is no real prospect of successfully…

An adjudicator’s agreement may arise by conduct where a party participates in an adjudication and thereby requests the adjudicator to act, even while…

Where a procurement claim is subject to the time limits in regulation 92 of the Public Contracts Regulations 2015, the court may extend time by up to three…

On an application to lift an automatic procurement suspension, the court applies the American Cyanamid Co v Ethicon Limited [1975] AC 396 approach. Once there…

A retrospective application for an extension of time to serve a document is governed by the same principles as an application for relief from sanctions. The…

A design-and-build contract may impose several cumulative obligations concerning the same materials. Compliance with a specified testing standard does not…

Section 2 of the Third Parties (Rights against Insurers) Act 2010 is engaged where a claimant claims transferred rights against an insurer, even though the…

Under an NEC3 construction contract, the employer could not impose a more stringent welding and testing standard than the parties had agreed. Defects had to be…

A monitoring surveyor’s duty is to exercise the skill and care reasonably expected of a competent monitoring surveyor in the circumstances. The duty commonly…

An application to lift a stay is governed by the overriding objective and the requirements of justice. The applicant bears the burden of showing that lifting…

On an interlocutory limitation application, claims should be struck out only where it is plain and obvious that they are statute-barred. A standstill agreement…

On an application to lift an automatic suspension in procurement proceedings, the court applies the American Cyanamid principles flexibly and asks whether it…

For tort claims based on fraud, limitation is postponed only until the claimant discovers the precise deceit relied on, or could have discovered it with…

For summary judgment, a set-off or counterclaim does not automatically prevent relief. The court must assess whether the defence has a realistic prospect of…

Extensions of time for challenging an arbitration award are exceptional. The applicant must explain the delay, and delay measured against the statutory 28-day…

Service of adjudication documents under the Scheme incorporated into a construction contract does not require proof that the recipient actually read or became…

In adjudication, the scope of the dispute is determined principally by the notice, read with the relevant background and the first adjudicator’s actual…

Under section 7(2) of the Party Wall etc. Act 1996, compensation for loss or damage caused by authorised works is assessed by applying ordinary common-law…

There is no general rule that an application for specific disclosure must, or must not, be heard before an application to lift the automatic suspension in…

An oral agreement for waste-removal services may bind a company rather than its owner where the surrounding circumstances, invoicing and payment arrangements…

Early disclosure in a procurement challenge must enable an aggrieved tenderer to understand the evaluation actually carried out and to plead its case properly.…

A statutory compensation scheme may be the exclusive remedy for injury caused by authorised works, including injury amounting to negligence or nuisance. The…

In construing a construction subcontract, the court must ascertain the objective meaning of the language used by reading the contract as a whole. It must…

A court order requiring insurance must be obeyed within the specified time. Difficulties in obtaining access, undertaking remedial works or securing insurance…

When deciding an application to set aside a regularly entered default judgment, the court must first consider whether the defendant has a real prospect of…

Service of a claim form and particulars of claim is a reserved legal activity because it forms part of the prosecution of proceedings and is a formal step…

Cost budgeting is not a tactical exercise. A party must provide realistic and justified figures when commenting on the opposing party’s budget in Precedent R.…

A party to an adjudication cannot ordinarily approbate and reprobate the adjudicator’s decision. Where, without an express reservation of rights, it invites…

Pre-action disclosure under CPR rule 31.16 remains discretionary even where the jurisdictional threshold is satisfied. The existence of the information regime…

Under an all-risks buildings policy, the insured must prove that loss resulted from a covered event. Accidental damage requires a chance, non-deliberate and…

A wide exclusion clause in a commercial contract may satisfy the reasonableness requirement under the Unfair Contract Terms Act 1977 where the parties have…

An adjudicator’s jurisdiction is defined by the dispute identified in the notice, read with the referral, the parties’ pre-adjudication assertions, pleadings…

An adjudicator under Housing Grants Construction Regeneration Act 1996 may determine a single dispute arising from one construction contract, even where the…

Public procurement proceedings are not private merely because they involve commercially sensitive information. The court starts from open justice and public…

An adjudicator’s decision within jurisdiction and reached in broad accordance with natural justice must ordinarily be enforced, despite errors of fact or law.…

Under Arbitration Act 1996, s 68(2)(g), a challenge based on fraud requires cogent evidence of dishonest, reprehensible or unconscionable conduct that…

Where a claimant fails to beat a defendant’s Part 36 offer, the ordinary costs consequences do not automatically justify indemnity costs. The court must…

Under section 68(2)(d) of the Arbitration Act 1996, a serious irregularity requires a tribunal to have failed to deal with an essential issue that was put to…

Under Civil Procedure Rules 1998, r 44.2, the unsuccessful party will ordinarily pay the successful party’s costs. Departure from that rule requires…

On an application to strike out, a claim should proceed where it has a real, rather than fanciful, prospect of success. The court should avoid a mini-trial and…

An actionable interference with a private right of way must be substantial. The question is whether the way can be used substantially as conveniently as when…

An arbitration agreement is not rendered inoperative merely because parties engage in pre-action correspondence or a court protocol. Abandonment requires an…

On an application for an interim payment, the court must be satisfied on the balance of probabilities that, on the evidence presently available, the claimant…

Rectification may correct a written contract where the parties shared a continuing intention, expressed that intention outwardly, and the instrument failed to…

Whether to expedite a procurement challenge is a discretionary case-management decision. The court must assess objective urgency, the procedural history, the…

Under a software licence, authorised use is determined by the contract’s express usage and pricing provisions. Where usage of an integrated system involves…

The strict approach to confidential information in Prince Jeffri Bolkiah v KPMG does not automatically prevent an expert from later giving evidence for the…

In a dilapidations claim, damages for breach of repairing covenants are capped by the diminution in the value of the reversion under Landlord and Tenant Act…

An equitable assignment of future contractual rights can arise when the rights come into existence, provided the rights are sufficiently identifiable. Whether…

A contractual liability cap is construed as part of the parties’ commercial allocation of risk. No special restrictive rules apply, but the cap must be clear…

A statutory sewerage undertaker may owe a common-law duty where its positive act creates a foreseeable risk of flooding, provided the claim does not merely…

A court may permit proceedings to continue during an insolvency moratorium where the applicant shows that the statutory purpose will not be prejudiced, the…

Under Civil Procedure Rules 1998, the unsuccessful party usually pays the successful party’s costs, but the court retains a broad discretion having regard to…

An interim payment application under a construction contract is valid if it is clearly identifiable, states the sum claimed and gives the basis of calculation.…

A late request for further information should not be refused solely because of delay where it concerns an issue relevant to the fair disposal of the trial and…

Construction payment notices must be construed objectively in their contractual and factual setting. An interim payment notice is valid where, in substance…