Building Law Monthly

In Sprunt Ltd v Camden London Borough Council [2011] EWHC 3191 (TCC), [2011] All ER (D) 87 (Dec) Mr Justice Akenhead held that the construction contract between the parties was in writing and so satisfied the requirements of s107 of the Housing Grants, Construction and Regeneration Act 1996 (‘the 1996 Act’). He also held that a contractual term which entitled the defendants to nominate the adjudicator was inconsistent with the requirements of the 1996 Act in that it gave to the defendants the right to nominate a judge in their own cause and such a right was inconsistent with the statutory requirement that adjudicators be, and be seen to be, impartial. Further, Akenhead J affirmed that any material non-compliance with the requirements of subsections (1) to (4) of s108 of the 1996 Act has the consequence that all of the express terms of the contract which deal with adjudication are dispensed with and replaced by the provisions of the Scheme for Construction Contracts.

In Lanes Group plc v Galliford Try Infrastructure Ltd [2011] EWCA Civ 1617; [2011] All ER (D) 179 (Dec) the Court of Appeal declined to imply a term into the contract between the parties that a party loses the right to adjudicate if it deliberately and without good reason fails to serve referral documents by the due date. This conclusion would appear to leave the door open to a party who is not content with the appointment of a particular adjudicator to abandon that reference and commence a fresh adjudication. The Court of Appeal also held that the adjudicator had not breached the principles of natural justice in sending to the parties a document entitled ‘Preliminary Views and Findings of Fact’ before he had heard all of the evidence submitted on behalf of the parties. It was held that there is a clear distinction between reaching a final decision prematurely (a breach of natural justice) and reaching a provisional view which is disclosed for the assistance of the parties (not a breach of natural justice). The present case was held to fall within the latter category.

In Lawrence v Fen Tigers Ltd [2012] EWCA Civ 26; [2012] All ER (D) 180 (Feb) the Court of Appeal allowed an appeal from Judge Seymour and held that the noise created by various motor car races held on the defendant’s land did not amount to a nuisance. In reaching this conclusion the Court of Appeal gave careful consideration to the relationship between the tort of nuisance and the planning laws.

In Carillion Construction Ltd v Smith [2011] EWHC 2910 (TCC), [2011] All ER (D) 121 (Dec) Mr Justice Akenhead held that an adjudicator had no jurisdiction to decide the dispute which he had been asked to decide because the dispute referred to him was the same as the dispute which had previously been referred to adjudication before a different adjudicator. The judgment of Akenhead J demonstrates that, when seeking to decide whether the dispute referred to adjudication is the same or substantially similar to a dispute previously referred to adjudication, it is necessary to pay careful attention to the evidence (which may be voluminous). While each case ultimately depends on its own facts, Akenhead J provided some helpful guidance which can be applied in future cases when seeking to decide whether the dispute referred to adjudication is the same or substantially similar to a dispute which has already been referred to adjudication.