High Court: Technology and Construction Court judgments, 2022

Indemnity costs are exceptional and depend on the particular circumstances. They require conduct that takes the case out of the norm and is unreasonable to a…

An adjudication award will ordinarily be enforced summarily, but enforcement must yield where the adjudicator decides the dispute on a novel, determinative…

In adjudication enforcement proceedings, a later adjudicator is bound only where the later dispute is the same, or substantially the same, as the dispute…

In very large group litigation, the court may impose bespoke case-management directions where ordinary group litigation procedures do not adequately identify…

In a procurement challenge under the Public Contracts Regulations 2015, the court applies the American Cyanamid Co v Ethicon Ltd approach to an automatic…

A construction contract may confer an extension of time only where the contractor proves an employer breach, causation of delay and compliance with any…

In a procurement challenge, a contracting authority must apply published criteria transparently, give reasons for its ultimate scores, and correct manifest…

Where building or landscaping works artificially alter the flow of naturally occurring rainwater and cause foreseeable damage to neighbouring land, the person…

At a costs and case management conference, the usual order is that costs be in the case. The court may depart from that position where a party’s conduct causes…

An indemnity costs order requires conduct or circumstances taking the case out of the norm. The assessment is discretionary and must reflect all relevant…

A claim in deceit requires proof of a false representation, dishonestly made, intended to be relied on and in fact relied on. Where the alleged representation…

A Part 36 offer may address a set-off arising from an existing liability where that set-off is an issue arising in the claim. An offer may contain additional…

An adjudicator’s decision under a contractual adjudication regime remains binding and enforceable unless and until revised in the agreed final…

Costs budgeting is a broad-brush exercise. The court assesses whether budgeted costs fall within the range of reasonable and proportionate costs, having regard…

A private nuisance requires an interference that materially affects the ordinary comfort of the average person occupying the claimant’s premises. The…

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

When a party seeks permission to replace an expert, the court may make permission conditional on disclosure of the earlier expert’s report. The discretion…

Permission to amend pleadings is discretionary and must be exercised in accordance with the overriding objective. The usual costs order may be displaced where…

A request for further information under Part 18 may concern matters broader than those formally pleaded, provided they remain matters in dispute in the…

A responding party to an adjudication may raise any properly arguable defence to the referred claim. That does not widen the dispute. An adjudicator must…

In a construction contract dispute, a contractor may obtain an extension of time for delay caused by an employer-risk event even where another concurrent cause…

For procurement challenges subject to a statutory 30-day period, time runs when the economic operator knows, or ought reasonably to know, facts apparently…

Standard terms are incorporated only where they are contractual terms and the party relying on them has given reasonable notice in the circumstances. Reference…

A contractor’s compliance with an amended fire strategy does not answer a claim for breach where the strategy itself fails to comply with contractual technical…

In an emergency procurement under regulation 32(2)(c) of the Public Contracts Regulations 2015, the absence of a conventional competition does not create an…

In a procurement challenge concerning the conduct of a competition before its outcome, the court may suspend the procedure under Public Contracts Regulations…

On a summary judgment application, the court may determine a short point of law or construction where it has the evidence needed for a proper decision. It must…

In construing a complex commercial contract, the court must ascertain the parties’ intention from the language used in its contractual and commercial context.…

In a procurement damages claim, a breach is not sufficiently serious merely because it caused the wrong tenderer to win the competition. The court must assess…

A freezing injunction is a protective remedy, not security for a prospective judgment. The applicant must establish a good arguable case, assets within the…

Where privileged or confidential material is disclosed by mistake, an injunction is exceptional. The court may restrain its use where the recipient knew, or a…

Private nuisance is determined objectively by reference to the character of the locality and the standard of comfort reasonably expected by an average…

A statement of case must identify the contractual basis of a claim with sufficient clarity for the defendant and court to understand the case to be met. This…

Expert evidence in procurement and judicial review proceedings is exceptional. It must be shown to be reasonably required to resolve a pleaded issue, rather…

An exclusive jurisdiction clause binds the parties who agreed it. A parent company is not made a party, agent or quasi-party merely by owning relevant rights…

A contracting authority may use a framework agreement, but must operate it transparently and equally. A mini-competition requires a genuine opportunity for…

The court has power under CPR 3.1(2)(m) to order early specific disclosure, but the discretion is exceptional. The applicant must show a good reason, assessed…

Applications alleging non-compliance with Practice Direction 57AC should be dealt with pragmatically and proportionately. An interlocutory application to…

The court may permit amendments where they are clearly formulated, adequately particularised and have a real prospect of success, balancing prejudice to the…

Where a contract for services fixes no completion date, the supplier must perform within a reasonable time. The assessment is fact-sensitive and may take…

When deciding whether to lift an automatic suspension in a procurement challenge, the court should consider four questions: whether there is a serious issue to…

Part 36 consequences are not avoided merely because a claimant’s offer leaves only a small mathematical discount. The question whether an offer was a genuine…

Strike-out and summary judgment are exceptional remedies. The court must assume pleaded facts are true for strike-out purposes and must be certain that the…

Disclosure in English proceedings is governed by the lex fori. A foreign blocking statute does not deprive the court of jurisdiction to order disclosure…

Contractual provisions are not void for uncertainty merely because they contain drafting infelicities, inconsistent dates or duplicated alternatives. The court…

A design-and-build contractor may be liable for both defective installation and an unsafe specification of combustible external wall insulation. Building…

Specific disclosure requires more than showing that documents are generally relevant to pleaded issues. The applicant must identify the disclosure issue to…

When ordering security for costs, the court must determine the amount, form and timing that are just in all the circumstances. General percentages may provide…

On an application for security for costs, an ATE policy may prevent the jurisdictional condition from being met only if it provides reliable and adequate…

On an application to lift an automatic suspension in a concession procurement challenge, the court applies the principles governing interim injunctions. It…

A contractual dispute resolution clause may create a condition precedent to litigation without ousting the court’s jurisdiction. To be enforceable, however…

Permission to amend should generally be granted where a proposed new cause of action arises from substantially the same facts already in issue, unless the…

In a procurement challenge, the court exercises a supervisory jurisdiction. It does not re-mark bids or substitute its own assessment for that of evaluators.…

Where a construction contract provides for adjudication followed by arbitration, the court must construe the contractual scheme to identify the matters…

An application to strike out witness-statement evidence for non-compliance with Practice Direction 57AC must be necessary and proportionate. The court’s…

For contractual remoteness, the relevant question is whether the type of loss was reasonably contemplated at contracting as a serious possibility. Where a…

A settlement between an employer and a surety under a performance bond does not, without more, constitute the contractual account required between the employer…

Although the general rule is that an unsuccessful party pays the successful party’s costs, the court has a broad discretion under CPR rule 44.2 to make a…

Where a contract imposes a single mandatory obligation but leaves the contract-breaker discretion over how to perform it, damages are assessed by asking how…

An adjudication decision binds the parties temporarily until final determination, but it does not displace the underlying contract or its later decision-making…

Summary enforcement of an adjudication award obtained by a company subject to a CVA remains a fact-sensitive discretionary question. The court must consider…

Applications for sanctions under Practice Direction 57AC must be approached with common sense and proportionality. The Practice Direction is intended to…

On an application to strike out or obtain summary judgment, the court must assume that pleaded facts are true and should not finally determine developing or…

A repairing covenant is judged by the age, character and locality of the premises, together with their permitted use and condition at the grant of the lease.…

An amendment adding a further head of loss does not necessarily introduce a new cause of action. The court compares the essential factual allegations…

Applications for a preliminary issue trial or interim injunction should be assessed by their practical utility, including whether they will resolve or…

Applications to amend pleadings engage the overriding objective and require a balance between prejudice to the applicant, the opposing parties and other court…

An adjudicator must decide the dispute referred, but need not answer every argument or declaration separately. A reference may address matters arising under a…

A freezing injunction may be granted where the applicant has a good arguable case for a money judgment, the respondent has assets against which it could be…

Under the statutory construction payment regime, a pay less notice must be referable to the payment notice identifying the notified sum for the relevant…

A group litigation framework does not relieve each claimant of the obligation to plead the material facts necessary to establish a complete cause of action.…

Whether a contractor is co-insured under project insurance, and the extent of any waiver of subrogation, depends principally on the contractual arrangements…

On an application for a mandatory interlocutory injunction, the applicable approach is the conventional American Cyanamid analysis. There is no distinct…

A payer who fails to serve a valid payment or pay less notice must pay the notified sum by the final date for payment. It cannot commence or rely upon a…

In professional negligence and construction claims, a party must plead a concise and clear statement of the facts relied upon. The pleading must identify the…

A director is generally not liable for inducing the company to breach its contract where acting bona fide and within the scope of authority. To displace that…

A landowner may owe a measured duty of care in nuisance and negligence to take reasonable steps to prevent drainage defects causing damage to neighbouring…

For service by email under Practice Direction 6A, the recipient or its solicitor must have given an explicit and clear written indication that email service…

Proceedings may be consolidated where they concern the same parties and transaction, raise substantially overlapping issues, and seek materially identical…

Negligence is assessed objectively by asking what a prudent and reasonable person would have done in the circumstances. A person who knows, or ought to know…

The exemption in regulation 7(1)(b) of the Defence and Security Public Contracts Regulations 2011 extends to procurements whose object is the conduct, control…

Summary judgment is inappropriate where liability depends on a developing or fact-sensitive duty of care, disputed contractual terms, the parties’…

In deciding an application for an interim mandatory injunction, the court applies the American Cyanamid principles, modified by the heightened caution required…

In procurement challenges alleging manifest error or unfairness, expert evidence is ordinarily confined to explaining technical concepts, the procurement…

A claimant who performs construction work on the footing that it will acquire and benefit from the development has no contractual or restitutionary entitlement…

Where Public Contracts Regulations 2015 regulation 32(2)(c) permits a direct award without prior publication, the contracting authority remains subject to the…