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Last Updated 20 December 2008 LAST UPDATED 20 th DECEMBER 2008 : WWW.NADR.CO.UK For Word Documents only : To re-set search category : Select a column : Click on direction arrow in Tables and Borders. No TOPIC INDEX CASE NAME (Hyperlinked – word version only – not available in pdf ) - CITATION : (On-line web source ) : Bullet point summary. JUDGE Year/M/D COURT 422 Jurisdiction on Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160 (TCC) : Bailli Akenhead, Mr 2008/12/19 TCC jurisdiction : Whether the adjudicator was given jurisdiction to decide that he had jurisdiction and if not whether he did have Justice Written jurisdiction. Held : Defendant consistently reserved right to challenge jurisdiction under the first submission as to a contract variation of the original contract and under an amended submission on the basis of a contract contained in the contract order. RJT Consulting v DM Engineering [2002] : Lloyd Projects Limited v John Malnick ; Grovedeck v Capital Demolition [2000]; Trustees Stratfield Saye Estate v AHL Construction [2004] considered. As to summary enforcement requirements, Jacobs UK v Skidmore [2008] EWHC 2847 (TCC) cited. As to whether contract wholly in writing, oral conversation after the event regarding fitness for a specified purpose, this was not an oral term – so contract on order terms only. Decision enforced. 421 Natural justice: Curot Contracts Ltd (t/a Dimension Shop Fitting) v Castle Inns Ltd (t/a Castle Leisure) [2008] ScotCS CSOH_179 : Bailli Glennie Lord 2008/12/16 Outer House failure to Summary enforcement unsuccessfully resisted on the grounds that not only had the adjudicator erred in law but that he Court of follow contract had effectively ignored the contract and decided the case on the basis of what he perceived to be just and reasonable. Whilst Session a failure to understand the law might in other circumstances amount to an excess of jurisdiction to West v Secretary of State for Scotland 1992 SC 385 this is not the case in adjudication. Provided that the adjudicator had asked himself the right question, his decision was not to be regarded as ultra vires on the ground merely that he gave the wrong answer: Gillies Ramsay Diamond v PJW Enterprises 2004; C&B Scene v Isobars [2002]; Carillion v Devonport Royal [2006]. The adjudicator rejected the defendant’s interpretation of the contract as too literal and produced an unreasonable / uncommercial result. He id not ignore the contract – he interpreted it – whether correctly or not is not at issue and hence the decision was applied. As to interpretation - L. Schuler A.G. v Wickman Machine Tool Sales Ltd . [1974] AC 235 noted. 420 Declaration : Walter Lilly & Co Ltd v DMW Developments Ltd [2008] EWHC 3139 (TCC) : Bailli Coulson, Mr 2008/12/11 TCC post Post adjudication application for a declaration - dispute about whether sale and fix of timber by sample complied with Justice adjudication contract terms - and whether supplier in breach when timber faded in colour. Court held : not suitable to determine issue of litigation breach under a Part 7 application : Part 8 proceedings needed to settle matter. Limited declarations provided to facilitate future proceedings. Compiled by Corbett Haselgrove Spurin © NADR UK Ltd 2007 1 419 Natural justice: Gipping Construction Ltd v Eaves Ltd [2008] EWHC 3134 (TCC) : Bailli Akenhead Mr 2008/12/11 TCC failure to Application for summary judgement enforcing adjudication decision. Defence conceeded, but questioned whether Justice conduct a site adjudicator should have had a site visit. Held : Since dispute determined on basis of defects to design faults not defective visit not a work, site visit not needed (though adjudicator is sole determinator of the process inanycase). Application for time to pay breach of duty pursuant to CPR Part 40.11 declined but permission to apply for extension before 14 days elapses if parties unable to broker a settlement - evidence of reasons for extension required. As to indemnity costs, usual where no defence - but defendant successfully raised issues regarding additional appearances caused by delays in serving documents - resultant costs deducted. 12 hours preparation time to serve two documents excessive and trimed. 418 Jurisdiction – Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047 (TCC): Bailli Akenhead Mr 2008/12/10 TCC variations or Jurisdiction : stay on grounds of financial state of claimant. Mechanical Services contract on Intermediate terms. Whether Justice separate three succeeding arrangments new contract (or in one case a mere letter of intent) or whether vairations of the original contracts contract. Held : Whilst the adjudicator had no jurisdiction - express or imlied to rule on jurisdiction - the finding by him that the subsequent arrangements were variations and thus part of the contract which gave him jurisdiction were findings of mixed fact and law that, whether right or wrong could not be challenged on enforcement. His Honour also agreed that they were variations. Enforcement accordingly. As to scope of jurisdiction Fiona Trust case [2007] UKHL 40 referred to. As to stay regarding financial situation Wimbledon Construction Co 2000 v Derek Vago [2005] BLR 374 applied. 417 Determination Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd [2008] EWHC 3138 (TCC): Bailli Coulson, Mr 2008/12/09 TCC and Determination - whether all payments suspended on determination under JCT Minor Works Form, 1998 edition. Justice suspension of Adjudicator found in adjudication No1 1) sum due prior to determination and 2) in adjudication No2 that clause 7.2.3. not payments therefore applicable : Decision enforceable under clause D7 1-3. As to non-enforcement Carillion v Devonport [2005] noted. pending Whether right or wrong - Bouygues v Dahl-Jensen [2000]; C & B Scene v Isobars [2002] noted - the court thought they were defects period correct decisions regarding that form of contract – see KNS v Sindall [2000]; Bovis v Triangle [2003]; Ferson v Levolux [2003] ; Verry v L.B. Camden [2006] referenced and accordingly the decision was enforceable. Melville Dundas v Wimpey [2007]; Pierce Design v Mark Johnson [2007] distinguished on facts, viz no insolvency and on the relevant standard form contract terms. Compiled by Corbett Haselgrove Spurin : Copyright NADR UK Ltd 2007 2 416 Stay to Balfour Beatty Construction Northern Ltd v Modus Corovest (Blackpool) Ltd [2008] EWHC 3029 (TCC) : Bailli Coulson Mr 2008/12/04 TCC mediation of Summary enforcement : stay to mediation - Held : agreement to agree to mediation : Stay refused. Channel Tunnel v Justice enforcement : Balfour Beatty [1993] AC 334. Cable & Wireless v IBM [2002] EWHC 2059 (Comm) considered. Carillion v Devonport Adequate [2006] BLR 15 noted. Whether non compliance with 24PD.2 fatal to application for enforcement - held : technical not reasons substantive failure - permission to amend granted. Whether a reasoned decision provided - Held YES. Gillies Ramsay Diamond v PJW Enterprises [2003] BLR 48, Checkpoint v Strathclyde [2003] EWCA (Civ) 84; World Trade Corp. Ltd v C Czarnikow Sugar Ltd [2004] 2 AER (Comm) considered. Whether a secondary defence considered : Held : YES. Whether there is a right to reply to response to defence : Held : NO. Glencot v Barratt [2001]. Kier v City & General [2006]. Considered. As to breach of natural justice London & Amsterdam v Waterman [2004]; McAlpine v Transco plc 2004 considered. Whether including the adjudication award in a subsequent valuation a waiver of right to enfoce : Held : No. Whether in the absence of a withholding notice payment is due for a certified claim : Held : YES. Rupert Morgan Building Services (LLC) Ltd v David & Harriet Jervis [2004] BLR 18 applied. Whether a counterclaim for LADs could be set off against award : Held : No. Balfour Beatty v Serco [2004], Parsons Plastics v Purac [2002], Ferson v Levolux [2003], William Verry v Camden [2006]. Whether a claim for LADs was enforceable by summary judgment : Held : No, a triable issue to be settled at a later date. Reinwood v L Brown & Sons Ltd [2008] BLR 219 noted. 415 Written Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802 (TCC) : Bailli Akenhead Mr 2008/11/17 TCC Contract – Written contract for the purposes of HGCRA : Failed application for summary enforcement : No jurisdiction over dispute, Justice meaning of or over award of interest. under HGCRA Regarding “ evidenced in writing ” RJT Consulting v DN Engineering [2002] BLR 217. Stratfield Saye v AHL Construction [2004] EWHC 3286 (TCC) considered. As to the status of a written contract in the light of implied terms Connex v MJ Building [2004] BLR 333, Galliford Try v Michael Heal [2003] EWHC 2886 (TCC) referred to. As to the jurisdiction of an adjudicator to award interest, Carillion v Devonport [2006] BLR 15 considered. 414 LADs and Liberty Mercian Ltd v Dean & Dyball Construction Ltd [2008] EWHC 2617 (TCC): Bailli Coulson Mr 2008/10/31 TCC EOTS. Application for preliminary declarations in support of adjudication : whether sectional completion schedule void for Justice Declaration of uncertainty by failing to define sectional completion dates : whether liquidated damages provisions (LADs) amounted to a validity in penalty in that the initial delay to section 1 cascaded down to sections 2-5 giving rise to further LADs ; validity of EOT's – 4 support of weeks or 8 – or alternatively should the original 4 week delay be disregarded in relation to sections 2-5. Held : 4 week EOT adjudication correct : Cascading sectional LADS not a penalty – it was what the parties had contracted for, and a genuine attempt to estimate loss – demonstrated by the fact that different sums attached to each successive section. Regarding liquidated damages provisions and assertions of penalty, Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79, Philips Hong Kong v The A-G of Hong Kong (1993) 61 BLR 49. Bramall & Ogden Ltd v Sheffield City Council (1983) 29 BLR 73, Braes of Doune Windfarm (Scotland) Ltd v Alfred McAlpine Business Services Ltd [2008] EWHC 426 (TCC), Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd [1970] 1 BLR 111 considered.
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