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REGINA (FACTORTAME LTD AND OTHERS)v SECRETARY OF STATE FOR TRANSPORT, LOCAL GOVERNMENT AND THE REGIONS(No 8)

[2003] BLR 1

Costs - Accountants agreeing to provide Claimant with services ancillary to litigation - Contingency fee agreement - Whether contingency fee agreement by accountants was champertous - Section 58 Courts and Legal Services Act 1990.

(1) ROGER JAMES LAYLAND (2) DEBORAH ANN LAYLAND v (1) FAIRVIEW NEW HOMES PLC (2) THE LONDON BOROUGH OF LEWISHAM

[2003] BLR 20

Single Joint Expert - CPR Rule 35.7 - Summary judgment application - Application to call an expert - Relevant principles - Expert’s views to be subject to cross-examination.

BOVIS LEND LEASE LIMITED v TRIANGLE DEVELOPMENT LIMITED

[2003] BLR 31

Adjudication - Enforcement proceedings - Appropriateness of CPR Part 8 proceedings - Nature of enforcement proceedings - Determination of Claimant’s employment - Clause specifying that in event of determination provisions of contract requiring further payment to Claimant not to apply - Whether Defendant had defence to enforcement proceedings - Whether Defendant had to serve notice under section 111 of Housing Grants, Construction and Regeneration Act 1996 to rely on defence.

GILLIES RAMSAY DIAMOND and PJW ENTERPRISES LIMITED

[2003] BLR 48

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Statutory scheme - Engagement of contract administrator - Whether “construction contract” under Act - Professional negligence - Damages - Whether Adjudicator could award damages. Judicial review - Adjudicator’s award - Whether decision of a type susceptible to review. Loss - Sum paid under Adjudicator’s award - Whether constituted loss for purposes of claiming damages.

LE JONES (INSURANCE BROKERS) LIMITED v PORTSMOUTH CITY COUNCIL

[2003] BLR 67

Tree roots - Subsidence - Nuisance - Degree of control - Defendant not occupier - Negligence - Agent of highway authority - Opportunity to abate nuisance - Burden of proof - Mitigation.

CARILLION CONSTRUCTION LIMITED v DEVONPORT ROYAL DOCKYARD

[2003] BLR 79

Adjudication - Housing Grants, Construction and Regeneration Act 1996 section 107 - Whether oral agreement to vary terms of written contract within meaning of an agreement in writing - Whether and when “dispute” arose.

CABLE & WIRELESS PLC v IBM UNITED KINGDOM LTD

[2003] BLR 89

Contract - Alternative Dispute Resolution (“ADR”) - Agreement to refer future disputes - Whether enforceable - Whether agreement to agree or negotiate - Whether lacking in certainty. Application for a stay of the action - Contract term that ADR procedures be used - claimant had made no attempt to submit to ADR - The court’s discretion in ordering stay or using other case management powers.

LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY v IMPREGILO SpA and Others

[2003] BLR 98

Conflict of laws - Currency - Whether question of currency of award matter of procedure to be determined by procedural law of arbitration. Conflict of laws - Interest - Whether right to interest matter of procedure to be determined by procedural law of arbitration. Arbitration - Jurisdiction - Serious irregularity - Exercise by arbitrators of powers under sections 48 and 49 of Arbitration Act 1996 - Whether such exercise in excess of jurisdiction - Whether such exercise a serious irregularity - Sections 68 and 69 of Arbitration Act 1996.

(1) AQUA DESIGN AND PLAY INTERNATIONAL LTD (IN LIQUIDATION) (2) FENLOCK HANSEN LTD v KIER REGIONAL LTD

[2003] BLR 111

DOM/1 subcontract - Corrections - Incorporation of amendments - Language used in negotiation - Contra proferentem - No ambiguity.

FERSON CONTRACTORS LIMITED v LEVOLUX AT LIMITED

[2003] BLR 118

Adjudication - GC/Works subcontract - Clause 29.8.1 - Cessation of sums due upon termination - Whether sum awarded by adjudicator subject to Clause 29.8.1.

SAUNDERS v WILLIAMS

[2003] BLR 125

Power of High Court Judge to hear TCC case - Practice Direction of TCC para 1.3. Power to reopen issues on appeal. Recovery of foreseeable damages caused to an unforeseeable extent - Mitigation of damages. Court of Appeal - Proportionality - Factual investigations by the Court of Appeal.

SCOTTISH & NEWCASTLE PLC v G D CONSTRUCTION (ST ALBANS) LIMITED

[2003] BLR 131

JCT IFC 1984 - Clauses 6.1.2 and 6.3C.1 - Employer’s obligation to take out joint insurance against damage to existing structure caused by fire - Contractor’s liability and obligation to indemnify excluding loss or damage caused by fire - Fire caused by negligence of contractor or subcontractors - Whether contractor’s liability excluded - Implied term preventing claim by employer.

CASSON (& ANR) v OSTLEY PJ LTD (& ORS) [2001] EWCA Civ 1013

[2003] BLR 147

Exclusion clause - Fire to premises caused by negligence of contractor or its subcontractors - Whether liability excluded therefor.

HOK SPORT LTD v AINTREE RACECOURSE COMPANY LTD

[2003] BLR 155

Leave to appeal from arbitrator’s award - Amending question of law - Inadmissibility of evidence - Damages - No transaction - Architects’ liability - Duty only to provide information - Measure of loss - Type of loss - “But for” test - Foreseeability - Scope of duty.

BALDWINS INDUSTRIAL SERVICES PLC v BARR LIMITED

[2003] BLR 176

Adjudication - Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) - Contract for hire of mobile crane and driver - Section 104 “construction contract” - Whether hire of crane and driver falls within definition - Whether adjudicator had jurisdiction. Stay of execution - Claimant in administration - Whether “special circumstances” - Stay defeats purpose of HGCRA - Whether stay should be ordered.

JOINERY PLUS LIMITED (In Administration) v LAING LIMITED

[2003] BLR 184

Adjudication - Decision made by reference to a contract other than the contract pursuant to which the dispute had been referred - Whether decision is a nullity - Whether banking of cheque in respect of an adjudication decision amounted to affirmation - Ability of party to start second adjudication in relation to matters already covered by earlier decision and para 9(2) of the Scheme - Entitlement to be repaid monies paid in respect of a decision which is a nullity - Application for permission pursuant to section 11(3)(d) of the Insolvency Act 1986.

ACTIONSTRENGTH LIMITED v INTERNATIONAL GLASS ENGINEERING IN.GL.EN SPA AND OTHERS

[2003] BLR 207

Guarantee - Oral agreement - Statute of Frauds 1677 section 4 - Estoppel - Applicability to guarantees.

AVRIL ALDERSON HILDA ALDERSON v BEETHAM ORGANISATION LIMITED

[2003] BLR 217

Defective Premises Act 1972 - Section 1(5) - Further works to rectify carried out post completion of original work - Relevant limitation period.

R DURTNELL & SONS LIMITED v KADUNA LIMITED

[2003] BLR 225

Adjudication - JCT Standard Form 1980 edition Private with Quantities - Clause 41A - Adjudication of dispute - Whether single or numerous disputes referred. Jurisdiction - Failure to raise objections in adjudication - Whether right lost - Estoppel by convention - Waiver of right. Approbation and reprobation - Equitable doctrine - Adjudication - Whether applicable to adjudication - Benefit of decision.

COWLIN CONSTRUCTION LIMITED v CFW ARCHITECTS (A FIRM)

[2003] BLR 241

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Jurisdiction of adjudicator - Whether jurisdiction - Whether right to object for want of jurisdiction had been waived - Whether election had been made. Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Section 107 - Construction contract. Adjudication - Value added tax - Whether element of award deciding value added tax was due was enforceable.

PROCTOR & GAMBLE (HEALTH AND BEAUTY CARE) LIMITED & ORS v CARRIER HOLDINGS LIMITED & ANOR [2003] EWHC 83 (TCC)

[2003] BLR 255

Limitation - Contract - Collateral contract whereby defendant warranted performance of certain equipment - Whether breach of collateral contract at date of warranty or at date of delivery of equipment. Limitation - Negligence - Representations as to performance of certain equipment - Equipment specified in main contract as result of those representations - Whether claimant suffered loss at date of specification or later.

BHP BILLITON PETROLEUM LTD AND OTHERS v DALMINE SpA

[2003] BLR 271

Causation - Burden of proof - Effect of pleadings - Burden on defendant - Proof of negative - “But for” test of causation.

HER MAJESTY’S ATTORNEY GENERAL FOR THE FALKLAND ISLANDS v GORDON FORBES CONSTRUCTION (FALKLANDS) LIMITED

[2003] BLR 280

FIDIC Conditions of Contract for Works of Civil Engineering Construction - Clause 53.4 - Establishing claims by contemporary records - Whether able to rely upon witness evidence.

TRY CONSTRUCTION LIMITED v ETON TOWN HOUSE GROUP LIMITED [2003] EWHC 60 (TCC)

[2003] BLR 286

Adjudication - Natural justice - Whether adjudicator acted in breach of natural justice in assessing period of extension of time.

PEGRAM SHOPFITTERS LIMITED v TALLY WIEJL (UK) LIMITED

[2003] BLR 296

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Section 108(2)(a) - Enforcement of decision - Jurisdiction - Dispute regarding terms of contract - Dispute regarding what procedural rules apply - Whether JCT adjudication procedure or statutory scheme applies.

ROAD MANAGEMENT SERVICES (A13) Plc v LONDON POWER NETWORKS Plc

[2003] BLR 303

Diversionary works - Construction of A13 - Applicable statute - New Roads and Street Works Act 1991 - Public Utilities Street Works Act 1950 - Cost-sharing provisions. Transitional provisions - New Roads and Street Works Act 1991 (Commencement No 5 and Transitional Provision and Savings) Order 1992 - Requirement of notice - Whether notice served - Whether party estopped from relying upon lack of notice - Interpretation Act 1976. Arbitration - Arbitration Act 1996 - Section 9 - Application for stay of proceedings.

BECK PEPPIATT LTD v NORWEST HOLST CONSTRUCTION LTD [2003] EWHC 822(TCC)

[2003] BLR 316

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Section 108(1) - Dispute - Existence - Test for establishing dispute - Halki binding - No exhaustive definition of dispute.

ORANGE EBS LTD v ABB LTD

[2003] BLR 323

Adjudication - Housing Grants, Construction and Regeneration Act 1996 - Section 108 - Jurisdiction of adjudicator - Dispute - Definition of dispute-test for establishing dispute - Halki test adopted

A L BARNES LIMITED v TIME TALK (UK) LIMITED [2003] EWCA Civ 402

[2003] BLR 331

Illegality - Claim by claimant contractor on contractual quantum meruit basis - Contractor’s director found to be guilty of dishonest assistance in breach of trust by defendant employer’s director and project manager - Whether contractor’s claim failed accordingly Costs - Appeal on costs - Claimant recovered sums at trial - Judge awarded defendant 50 per cent of its non-expert related costs on basis no order for costs in respect of experts dealing with quantum meruit claim and order for costs in relation to dishonesty issue on which defendant successful - Whether correct principles applied

CELTIC CONTRACTORS LIMITED v INFINITE ENVIRONMENTAL SERVICES LIMITED [2003] EWCA Civ 722

[2003] BLR 340

Charge - Whether agreement between contractor and sub-contractor had effect of creating charge in sub-contractor’s favour. Interim injunction - Whether interim injunction should be granted to restrain contractor from dealing with property over which charge alleged.

LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY v IMPREGLIO SpA AND OTHERS

[2003] BLR 347

Conflict of laws - Currency - Whether question of currency award matter of procedure to be determined by procedural law of arbitration. Conflict of laws - Interest - Whether right to interest matter of procedure to be determined by procedural law of arbitration. Arbitration - Exercise by arbitrators under sections 48 and 49 of Arbitration Act 1996 - Whether in excess of jurisdiction.

VAI INDUSTRIES (UK) LIMITED v BOSTOCK & BRAMLEY TRANSMISSIONS LIMITED & ORS [2003] EWCA Civ 1069

[2003] BLR 359

Warranty - Supply of goods - Effect of warranty as to goods where clause provides that warranty period is for no longer than 24 months from delivery FOB. Limitation - Whether claim commenced more than six years from delivery FOB, but less than six years from expiry of 24-month period statute-barred. Guarantee - Supply of goods - Term providing that if any latent defect found within period of three years defect will be made good by supplier - Whether implied term that equipment (including any replacement parts) would be free from defects in design, materials and workmanship and would conform to the specification.

ROBIN ELLIS LTD v VINEXSA INTERNATIONAL LTD

[2003] BLR 373

JCT IFC 84 Standard Form of Contract - Clause 7.2 - Determination by the employer under clause 7.2.3 - Power of architect under clause 7.2.1 - Agreement of parties to appeal question of law arising out of arbitration award.

SHIMIZU EUROPE LIMITED v LBJ FABRICATIONS LIMITED

[2003] BLR 381

Housing Grants, Construction and Regeneration Act 1996 - Section 111 - Adjudication - Withholding notice after adjudication - Jurisdiction - Natural justice - Letter of intent - TeCSA Rules 28 and 33.

HURST STORES AND INTERIORS LIMITED v ML EUROPE PROPERTY LIMITED

[2003] BLR 391

Full and final settlement - Signed statement of account - Unilateral mistake - Actual, implied and ostensible authority - Consideration - Estoppel - Rectification.

(1) BR CANTRELL (2) EP CANTRELL v WRIGHT & FULLER LIMITED

[2003] BLR 412

Final certificate - JCT Standard Form of Contract 1980 edition - Clause 30.8 - Clause 30.9 - Construction of conclusive evidence clauses - Conditions precedent to issue of certificate. Time limits for issue of certificate - Whether mandatory or directory - Application of principles to certificate issued out of time. Arbitration - Agreement of parties to appeal on points of law - Clause 41.6.1.

LOVELL PROJECTS LIMITED v LEGG AND CARVER

[2003] BLR 452

Adjudication - Adjudication clause in JCT Agreement for Minor Building Works (1998 edition) - Whether unfair within meaning of Unfair Terms in Consumer Contracts Regulations 1999. Adjudication - Jurisdiction - Whether dispute existed. Adjudication - Claim by contractor to enforce adjudicator’s award - Whether employer entitled to set-off sums allegedly owed by contractor.

CITY INN LIMITED v SHEPHERD CONSTRUCTION LIMITED

[2003] BLR 468

Extension of time provisions - Entitlement conditional upon contractor taking certain steps whether this amounted to penalty provision.

MANX ELECTRICITY AUTHORITY v J P MORGAN CHASE BANK

[2003] BLR 477

Performance bond - Guarantee - On demand bond - Demand under performance bond - Breach by contractor/principal - Anticipatory breach - Whether valid demand under bond. Subsequent demand - Breach by contractor as at date of demand - Whether accrued or existing - Whether actionable - Whether valid demand.

PICARDI v CUNIBERTI AND CUNIBERTI

[2003] BLR 487

Contract - Formation of contract - Whether contract concluded on terms not signed by defendants. Adjudication - Adjudication clause in RIBA conditions of engagement for appointment of architect - Whether incorporated - Whether unfair within meaning of Unfair Terms in Consumer Contracts Regulations 1999.

THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LEWISHAM v MR LIMITED

[2003] BLR 504

Common law duty of care not to cause economic loss - Nature of damage to avoid - Date when damage occurred.

BRICAN FABRICATIONS LTD v MERCHANT CITY DEVELOPMENTS LTD

[2003] BLR 512

Direct payment arrangements - Employer and sub-contractor - Bilateral verbal agreement - Assent of the main contractor - Liquidation of the main contractor - Effects on the main and sub-contracts.

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