High Court: Technology and Construction Court judgments, 2019

On an application to lift an automatic suspension in a procurement challenge, the court applies the American Cyanamid approach. It asks whether there is a…

An indemnity costs order requires conduct or circumstances taking the case outside the norm. The court must consider all the circumstances, including the…

Where parties’ conduct temporarily prevents reliance on a contractual deadline, the resulting estoppel may postpone the start of the contractual period without…

Part 8 declaratory relief is discretionary. In adjudication-related proceedings, the court should grant declarations only where the issue can fairly be…

An agreement may contain separate offers, some capable of acceptance and others amounting only to invitations to negotiate. Whether a contract was formed, and…

A trial date in the Technology and Construction Court should be vacated only in exceptional circumstances. Increased disclosure volume will not ordinarily…

A contractual assessment clause permitting recovery of overpayments may operate alongside the interim-payment and final-account machinery in a construction…

Where a contract provides a termination payment, the client cannot avoid that payment by making termination inevitable through selling the relevant property…

Where a claimant beats its own Part 36 offer, the prescribed consequences ordinarily follow unless it would be unjust to impose them. The regime is intended to…

Where a claimant’s Civil Procedure Rules 1998 Part 36 offer is at least as advantageous as the judgment obtained, the prescribed consequences should follow…

A contractual obligation must be construed in its factual context at the time of agreement. A party cannot use anticipated difficulties in obtaining a future…

On an application to adjourn a fixed trial, the court must balance the legitimate expectation that the fixture will be maintained against the risk of an unfair…

In commercial litigation, the party receiving a substantial payment will ordinarily be treated as the overall successful party for costs purposes. The starting…

In procurement proceedings involving an automatic suspension, an awarding authority seeking discharge should provide sufficiently detailed reasons and…

An adjudication decision obtained by a company in insolvent liquidation will ordinarily be unenforceable because adjudication is incompatible with insolvency…

A dispute for adjudication crystallises when the claim has been communicated and the responding party has had a reasonable opportunity to consider it, and it…

In a hybrid construction contract, the parties may agree one payment regime covering both construction and non-construction operations. A payment notice need…

Under a joint venture agreement reflecting an NEC target-cost contract, interim reimbursement of a party’s properly identified Works Part Costs is not subject…

In a summary assessment of costs, recoverable costs are limited to costs reasonably and proportionately incurred and reasonable and proportionate in amount.…

Contractual rights constitute possessions under Article 1 of the First Protocol only where they have an identifiable and readily realisable monetary value. A…

A contractual tiered dispute-resolution clause may create an enforceable condition precedent to court proceedings. The procedure must be expressed in mandatory…

Damages for breach of warranty in a share purchase agreement may be assessed by the reduction in the value of the acquired companies resulting from the breach…

Under section 103(5) of the Arbitration Act 1996, enforcement of a New York Convention award may be adjourned while the outcome of foreign setting-aside…

Challenges under the Public Contracts Regulations 2015 must be brought within the prescribed period once the economic operator knows, or ought to know, that…

For the purposes of the Housing Grants Construction and Regeneration Act 1996, delivery of materials is excluded from “construction operations” unless the…

Settlement agreements made by an agent acting for a financially pressured employer remain enforceable unless fraud, bribery, dishonest assistance, undue…

In adjudication enforcement proceedings, an adjudicator’s error in addressing evidence or a sub-issue will ordinarily not make the decision unenforceable if…

A professional designer responsible for structural fill and associated drainage must design the works as an integrated system, including the consequences of…

Public-law challenges to the validity of administrative decisions must generally be brought promptly by judicial review. That principle does not convert an…

An application made before expiry of the permitted period to extend time for complying with a court order is governed by Civil Procedure Rules 1998, rule…

The first ground for a declaration of ineffectiveness under the Public Contracts Regulations 2015 is concerned with whether the required prior contract notice…

On an application to enforce an adjudicator’s decision by summary judgment, the respondent need only show a real prospect of success. That means a prospect…

A notice of adjudication must be construed objectively as a whole, against its contractual setting, and by asking how it would have informed a reasonable…

In construing a contractual payment provision, the natural and ordinary meaning of default was a failure to comply with a contractual obligation. The court…

A contractual choice of court clause may operate alongside adjudication and arbitration provisions where the contract does not clearly replace those…

Costs of an interim application ordinarily follow the party that substantially succeeds, assessed by reference to the relief obtained and the circumstances…

For limitation under section 14A of the Limitation Act 1980, knowledge concerns the damage claimed and the broad facts linking it to the defendant’s act or…

In adjudication enforcement proceedings, the court will ordinarily enforce an adjudicator’s decision under the statutory construction adjudication scheme. A…

In an application to lift the automatic suspension of a public procurement, the court applies the Public Contracts Regulations 2015 and the American Cyanamid…

Security for costs against a counterclaiming defendant depends on the substance of the dispute, not merely the form of the pleadings. A counterclaim is not a…

A contracting authority has a broad discretion to abandon a procurement before contract award. That discretion does not, without clear statutory authority…

A company voluntary arrangement may bind a creditor without preventing the company from pursuing or defending claims. However, where an adjudicator’s decision…

Cause of action estoppel and merger bar a second action based on the same cause of action. The comparison concerns the causes of action, not the particular…

An adjudicator’s decision should ordinarily be enforced by summary judgment while it remains valid and enforceable. The court will not examine whether the…

An adjudicator may reach conclusions on programme logic, the critical path and an extension of time where those matters arise from the dispute referred and the…

A builder ordinarily owes no tortious duty to a purchaser in respect of the cost of repairing defective work where the loss is pure economic loss. The proposed…

An adjudicator’s decision will ordinarily be enforced by summary judgment. The court does not reconsider its merits. Resistance is confined to exceptional…

Part 7 adjudication-enforcement proceedings should ordinarily be dealt with promptly, even where related Part 8 proceedings concern the same adjudication or…

Adjudication decisions are ordinarily enforced summarily under the statutory construction adjudication scheme, reflecting the principle of temporary finality…

A contractual notice deeming defects to have been made good may conclusively end the contractual defects-liability machinery without conclusively determining…

Whether works amount to substantial demolition is a question of fact and degree. It is not necessary that every part of a building be removed. Removing enough…

Enforcement of an adjudicator’s decision will ordinarily follow the pay now, litigate later principle. The court will not reconsider the adjudicator’s…

A professional negligence claim concerning construction cost overruns requires proof that the professional fell below the standard of reasonable competence and…

Applications to amend are governed by a single balancing exercise. The court must decide whether the injustice to the applicant if permission is refused…

In adjudication enforcement proceedings, fraud may provide a defence only where it is a real defence to the adjudicated claim. Fraud must be supported by clear…

A preliminary issue should ordinarily concern a question of law decided on agreed or assumed facts. The procedure is unsuitable where deciding the issue…

In assessing costs after a substantial damages claim produces a much smaller recovery, the court must identify the successful party by examining the litigation…

Contractual dispute-resolution provisions must be construed as a whole. Where a contract creates a specific and mandatory procedure for interface disputes, a…

Contractual performance representations concerning industrial machinery are construed in their commercial and factual context. A throughput representation may…

Contractual notice provisions are construed by their wording and commercial purpose. A notice need not plead every detail, but must identify the nature and…

The Technology and Construction Court will intervene in an ongoing adjudication by injunction or declaration only in rare or exceptional circumstances. A…

In successive adjudications, the critical comparison is between what the first adjudicator actually decided and what is later referred. A later dispute is not…

Contract formation is determined objectively from the parties’ words and conduct. A binding construction contract may arise even though only one party has…

In procurement challenges, an unsuccessful tenderer should promptly receive essential information and documents showing how the evaluation was actually carried…

Where procurement proceedings are governed by a statutory notice requirement, the claimant must identify the actual alleged breach by reference to the…

An architect providing design and project-management services must establish and maintain a sufficiently clear written brief. Design development and material…

A contract requiring joint implementation of software and related services may carry an implied duty of co-operation where performance cannot occur without…

Indemnity costs require conduct or circumstances taking the case out of the norm. Unreasonableness must be at a high degree; conduct that is merely wrong…

An employer required to make an immediate payment under the Housing Grants, Construction and Regeneration Act 1996 after failing to serve a Payment Notice or…

Costs remain discretionary despite the general rule that they follow success. The court may make a group or proportionate costs order where legally separate…

Where procurement proceedings concern an urgent public interest issue and an early decision is required, the court may order an expedited trial, even though…

Interest on damages is compensatory. It reflects the claimant’s loss from being kept out of money that ought to have been paid, rather than the defendant’s…

On an application to enforce an adjudicator’s decision, the court applies the ordinary CPR 24.2 test. Jurisdictional objections may be decided summarily where…

An adjudicator may correct a decision under the statutory slip rule where the correction removes a clerical or arithmetical error and gives effect to the…

A repairing covenant may require reinstatement, replacement or renewal where necessary, including remediation of inherent or design defects. Disrepair is…

Adjudication-related proceedings do not automatically qualify for the expedited procedure used for adjudication enforcement. A party must not issue overlapping…

A building warranty policy covering flats and common parts may require the insurer to meet the reasonable cost of permanent remedial works, even where the…

In adjudication enforcement proceedings, a party that wishes to challenge jurisdiction must raise the objection appropriately and clearly. A vague general…

In construction adjudication, a dispute about the valuation of a final account may be referred before any entitlement to payment has arisen. A fair hearing is…

On an application for interim injunctive relief, the court may order both preservation and delivery up of data where there is a serious issue to be tried and…

A partnership may be named in adjudication proceedings by the business name under which it contracted and carried on business. The absence of the partners’…

In procurement, equal treatment does not require identical treatment of bidders whose relevant competitive positions differ. A difference must be assessed in…

Summary judgment or strike-out should be granted only where the claim is fanciful, discloses no viable cause of action, or can be resolved confidently without…

A contractual change to the address for payment applications must be effected in accordance with the contract and communicated in a manner that objectively…