High Court: Technology and Construction Court judgments, 2020

Under section 110(1)(a) of the Housing Grants, Construction & Regeneration Act 1996, the question is whether the payment mechanism in the particular…

An agreement expressly made subject to contract and without prejudice will not normally become binding merely because the parties act upon it. Payments…

For a civil recovery order, the claimant must establish on the balance of probabilities that the property was obtained through unlawful conduct and that the…

An adjudicator appointed under an admitted construction contract may decide whether later dealings were variations of that contract or separate contracts only…

Where an amendment effectively abandons a distinct cause of action, the court may order the amending party to pay both the costs of and caused by the amendment…

Extrapolation from representative sampling is permissible in principle in professional negligence and construction claims. The claimant must still prove, on…

Permission to amend after expiry of limitation requires the proposed new claim to arise from the same or substantially the same facts as the existing claim.…

A contract for interior design services is construed according to its own terms. Where the contract provides for estimates to be accepted before becoming…

Where parties achieve mixed procedural outcomes on applications concerning pleadings, the court may order that the relevant costs be costs in the case. That…

Construction contracts are governed by ordinary contractual principles. Whether a document described as an estimate creates a fixed-price contract, a cost-plus…

A VAT refund obtained by a trader under a statutory reimbursement scheme, supported by an undertaking to repay the customer who bore the VAT, may be held on a…

Permission for judicial review requires an arguable case deserving full investigation. Derogations from ordinary public procurement procedures require strict…

Adjudication decisions are enforced unless the adjudicator decided a question outside the reference or acted in a manner that was obviously unfair. A referring…

Extensions of time for serving Particulars of Claim should promote a properly pleaded case while allowing reasonable time for investigation and any Pre-Action…

Where limitation is an essential part of a jurisdiction challenge, the court may determine limitation and jurisdiction together as preliminary issues. It need…

In a wholly video-conducted civil hearing, the court may permit parties, witnesses and other authorised persons to attend remotely from outside England and…

An interim payment application under a construction subcontract must be clear in substance, form and intent. It must identify the sum claimed, the basis of…

Abuse of process may arise where proceedings are pursued in parallel with closely related foreign group litigation, creating oppressive duplication, a serious…

In a procurement challenge, summary judgment may be granted where the claimant has a cast-iron case on breach and no real prospect of avoiding an order setting…

Under CPR 3.1(3), the court may make continued participation in proceedings conditional on payment of security and may specify strike-out as the consequence of…

On an application to continue an interim injunction, the court applies the American Cyanamid principles. There must be a serious issue to be tried; damages…

A court cannot revisit a sealed and unappealed order unless the order authorises reconsideration or an applicable general jurisdiction is engaged. Where an…

A revision to an approved costs budget may be justified by a significant development: an event, circumstance or step going beyond what was expressly or…

For a proprietary interim claim, the court applies the familiar requirements of a serious issue to be tried, the balance of convenience, and whether it is just…

A contractual reference to assigning a subcontract ordinarily transfers the assignor’s accrued and future rights, unless clear words limit the assignment. It…

A lease covenant requiring premises to be delivered up in good and substantial repair and condition may require works extending beyond repair strictly so…

Signed timesheets are primary evidence of hours worked where a labour-supply contract provides for invoicing by reference to them, but they are not conclusive…

A party cannot introduce a substantial new issue at the eleventh hour merely because the supporting evidence was already before the court. A skeleton argument…

A company in insolvent liquidation may adjudicate and may, in principle, obtain summary enforcement of an adjudicator’s decision. Enforcement depends on…

Permission to amend a statement of case should be refused where the proposed claim does not have real prospects of success and lacks a coherent pleaded causal…

A Part 36 offer must comply with the mandatory requirements of Civil Procedure Rules 1998 Part 36, but an ambiguity in an otherwise genuine Part 36 offer may…

A contractual retention remains retention money unless the contract clearly provides otherwise. Where the contract specifies when it may be withheld, the…

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

A request for the appointment of an adjudicator under the Scheme must follow the notice of adjudication. A request made first cannot validly found the…

Economic duress is not established merely because a party uses lawful commercial pressure. Where the party applying pressure honestly believes, in good faith…

Where a judgment debtor obtains a stay of execution pending appeal, costs of the stay application may properly be treated as costs in the appeal where both…

Permission to amend a statement of case shortly before trial requires a heavy burden to be discharged. The applicant must explain the delay, show that the…

Under CPR r 19.6, representative proceedings require the representative and represented parties to have the same interest. Common issues of fact or law are…

A stay of execution pending appeal is exceptional. The court must first determine whether enforcement would stifle an effective appeal and must then exercise a…

When claims concerning the same defects are brought against different defendants, the starting point may be a joint trial to avoid duplicated proceedings and…

In assessing costs after a substantial but incomplete recovery, the successful party is identified by examining who won in substance and reality, rather than…

In determining the scope of a common-law duty of care for economic loss, the court must consider the contractual nexus, or absence of one, together with the…

Summary assessment of costs is a global assessment, rather than an item-by-item detailed assessment. The court must allow costs that are proportionate and…

A failure to prevent an unknown third party causing property damage is ordinarily a pure omission and does not give rise to liability in negligence. The…

An adjudicator’s valuation may be temporarily binding even where the adjudicator lacked jurisdiction to order payment to the responding party. The court may…

Expert determination clauses must be construed according to the contract’s language and structure. The expert may determine factual matters necessary to…

For a procurement damages claim, the claimant must establish on the balance of probabilities that it was an economic operator and had a material interest in…

A party’s failure to pay an adjudication award and judgment may justify a stay of later proceedings, particularly where the conduct is deliberate, persistent…

Strike-out is an exceptional remedy. Under CPR r.3.4(2)(a), the court considers whether the pleaded case discloses a legally recognisable claim or defence…

Where an individual contracts with another party, the individual is the contracting party unless the document or admissible extrinsic evidence makes clear that…

On an application for strike-out or summary judgment, the court must not conduct a mini-trial. A claim should proceed where factual disputes may determine the…

For the purposes of section 105(2)(c)(i) of the Housing Grants, Construction and Regeneration Act 1996, the relevant question is whether power generation is…

On a defendant’s application for summary judgment, the court must decide whether the claim has a realistic, rather than fanciful, prospect of success. It must…

A long-term PFI contract may be a relational contract, but an implied duty of good faith cannot contradict detailed express provisions or require a party to…

For summary judgment, the court asks whether the claim has a real, rather than fanciful, prospect of success. It must avoid a mini-trial, while rejecting…

In a public procurement, a contracting authority may allocate substantial, uncertain or exogenous commercial risks to bidders, particularly where the…

Design life, suitability and maintenance provisions in a design-and-build contract may impose strict contractual obligations, rather than duties of reasonable…

After expiry of the limitation period, substitution of a claimant is governed by Civil Procedure Rules 1998 Part 19.5 where the proposed claimant is a…

A dispute may crystallise through silence where a contractual claim has been adequately notified, the respondent is obliged to respond within a specified…

Disclosure under PD51U must be directed to the issues in dispute and must remain reasonable and proportionate. There is no presumption in favour of Extended…

In assessing costs, comparison with the opposing party’s costs may be informative when considering whether the costs claimed are prima facie excessive.…

Cost budgets should be assessed by reference to proportionality and the issues genuinely requiring determination. Where written closing submissions are…

A professional surveyor must exercise reasonable skill and care within the scope of the service agreed. Choosing a HomeBuyer Report rather than a building…

In a terminal dilapidations claim, disclosure must be reasonable and proportionate to the issues requiring determination. The court should order only…

Anonymity requires strict justification because it derogates from open justice. Personal concerns about internet searches were insufficient, although omitting…

An award of interest is discretionary and should fairly compensate a claimant for being deprived of money that ought to have been received. Interest on…

A supplier undertaking design work for components intended to operate within a wider system must take reasonable care to ensure that the components can be…

An application for pre-action disclosure under CPR Part 31.16 requires satisfaction of a jurisdictional threshold and then a separate discretionary assessment.…

Summary judgment and strike out are exceptional remedies where the pleaded case depends on disputed facts. A claim has a real prospect of success if it carries…

A party dissatisfied with an adjudicator’s decision must ordinarily comply with it and argue the merits later. A Part 8 claim may prevent enforcement only…

Under the Public Contracts Regulations 2015, a breach which causes loss or a risk of loss is actionable when the economic operator knows, or ought to know, the…

Adjudication exists to secure interim cash flow. An adjudicator’s decision will ordinarily be enforced by summary judgment where the adjudicator had…

The threshold for indemnity costs is high. They should be ordered only where the conduct or circumstances take the case outside the norm. Serious allegations…

Adjudication decisions are ordinarily enforced summarily where the adjudicator decided the referred issues within jurisdiction and broadly complied with…

A logistics provider responsible for goods and distribution services must assess reasonably foreseeable risks, including unauthorised entry, arson and fire…

Payment of an adjudicator’s fees does not, without more, establish an election to accept the decision as valid. The court must assess the objective inference…

Adjudication decisions are ordinarily enforced summarily because adjudication provides a rapid, interim resolution of construction disputes. A stay of…

Under CPR rule 19.5, substitution after expiry of the limitation period is available where the original claim cannot properly continue without the new party…

In procurement proceedings, an amendment is not a new claim merely because it expands the factual enquiry. The question is whether the core breach remains the…

Applications affected by the Covid-19 pandemic must be determined by reference to the overriding objective, the importance of continuing the administration of…

An independent expert may owe a fiduciary duty of loyalty to the client where the retainer includes extensive litigation or arbitration advice and support, in…

An adjudicator’s jurisdiction depends on the contractual or statutory adjudication mechanism actually agreed by the parties. A notice need not expressly…

Interlocutory injunctions preventing an adjudication are exceptional. They should be granted only in very rare and clear cases, such as where the adjudication…

Where the statutory or procedural conditions for security for costs are satisfied, the court must decide whether security is just having regard to all the…

In group litigation, the parties’ ordinary choice of solicitors and counsel is qualified by the need for efficient, proportionate and coherent management of…

A consequential case-management hearing may address an issue closely connected with an earlier judgment, but fairness may require the issue to be adjourned…

Service of a claim form at a company’s relevant place is effective where the documents are left at the correct address. Handing them to a receptionist at that…

Payment provisions in a construction contract must be construed with the contractual terms and supplemented by the Scheme for Construction Contracts only to…

For the purpose of adjudication, a notice is given when it comes to the addressee’s attention, or on the contractually deemed date of service, rather than…

For limitation purposes, a single oil spill causing continuing consequential damage ordinarily constitutes one nuisance, not a continuing nuisance, unless the…

A guarantee must be construed according to its wording and as a whole. A bond framed as a performance guarantee, requiring breach and contractual establishment…

A contracting authority may abandon a procurement exercise at any stage unless contract, statute or procurement law imposes a restriction. The decision remains…

An insolvent company is not automatically barred from bringing adjudications merely because its claims and counterclaims arise under several contracts.…

Expert evidence may be excluded where an expert’s lack of independence makes the evidence inadmissible, but exclusion is a serious and proportionate response.…

A demand guarantee must be construed objectively, using both textual and contextual analysis. Where competing constructions exist, the court may prefer the…

A settlement offer is construed objectively from its wording and the relevant factual matrix. Where an offer refers to payment of the costs of the litigation…

In an amended FIDIC-style construction contract, responsibility for site and subsurface conditions remained with the contractor where the contract contained a…

A later claim is not necessarily an abuse merely because it could have been brought in earlier proceedings. The court must ask whether it should have been…

Summary judgment may enforce an adjudicator’s decision even where the defendant takes no part in the enforcement proceedings, provided service and jurisdiction…

Where an adjudicator has jurisdiction and has complied with natural justice, the decision should ordinarily be enforced under the pay now, argue later…

An arbitration clause may be incorporated into a construction contract by a sufficiently wide reference to a quotation that included the supplier’s standard…

In a shorter trial, expert evidence must remain within the real issues defined by the statements of case and their context. A general allegation putting a…

On an application for strike out or summary judgment, a pleaded duty of care claim may be rejected where the facts cannot establish sufficient proximity, an…

Contractual documents must be construed as a whole, considering their language, context and commercial consequences. Where vesting certificates provide for…