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.

In Herbosh-Kiere Marine Contractors Ltd v Dover Harbour Board [2012] EWHC 84 (TCC), [2012] All ER (D) 187 (Jan) Mr Justice Akenhead held that a decision of an adjudicator could not be enforced because he had exceeded his jurisdiction by addressing and finding a method of assessment which formed no part of the dispute which ` the principles of natural justice in deciding the case on a basis that had not been argued by either party and without giving to the parties the opportunity to make submissions on the method of assessment which he considered that he should adopt. The adjudicator had gone off ‘on a frolic’ of his own and it was a ‘frolic’ which may have made a material difference to the outcome of the decision. It followed that his decision was unenforceable.

R ter Haar and C ter Haar Remedies in Construction Law (Informa, 2010), £290 hardback, 399pp + tables and index.

In Progress Bulk Carriers Ltd v Tube City IMS LLC [2012] EWHC 273, [2012] All ER (D) 122 (Feb) Mr Justice Cooke, in the context of a claim to set aside a contract on the ground of economic duress, affirmed that illegitimate pressure can be constituted by conduct which is not in itself unlawful, although it will be an unusual case where that is so, particularly in the commercial context. He also held that a past unlawful act, as well as a threat of a future unlawful act can, in appropriate circumstances, amount to illegitimate pressure.

In Newman v Framewood Manor Management Co Ltd [2012] EWCA Civ 159; [2012] All ER (D) 144 (Feb) the Court of Appeal allowed the claimant’s appeal and held that she was entitled to recover damages for loss of amenity in respect of a number of defects in a property of which she had taken a 999 year lease. While the Court of Appeal was not willing to make a specific performance order, the effect of which would have been to order the lessor to carry out various repairs, it awarded the claimant damages to reflect the loss of amenity which she suffered as a result of the defendants’ failure to keep in repair some of the facilities which the claimant was entitled to use under the terms of the lease.

In Berry Piling Systems Ltd v Sheer Projects Ltd [2012] EWHC 241 (TCC), [2012] All ER (D) 140 (Feb) Mr Justice Edwards-Stuart held that the defendants had failed to establish that the adjudicator had materially breached the principles of natural justice, nor had the defendants made out a case for a stay of enforcement on grounds related to the financial health of the claimants. This being the case, it was held that the claimants were entitled to enforce the decision of the adjudicator.

In Inframatrix Investments Ltd v Dean Construction Ltd [2012] EWCA Civ 64, [2012] All ER (D) 27 (Feb) the Court of Appeal held that the claimants were not entitled to bring a claim for damages for breach of contract because more than a year had passed from the date on which the defendants last performed services in relation to the project. The contract between the parties contained a term which limited the claimants’ entitlement to bring a claim for damages to this one year period and the court held that effect had to be given to the clear meaning of the term. No argument was advanced to the effect that the clause was subject to regulation under the Unfair Contract Terms Act 1977.