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| The parties concluded a JCT Minor Works Contract and a separate oral contract for design works. Disputes arose under both contracts that were submitted to adjudication. The adjudication declined jurisdiction regarding the design disputes and made an award for payment in respect of the works contract. Enforcement was resisted on the grounds that the contract was not sufficiently in writing for HGCRA purposes. The court found that the JCT contract was entirely in writing and there was no evidence of additional written terms. TCC. 31st May 2007 |
| by HHJ Peter Coulson : Crown Copyright |
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| The court was called upon here to determine whether or not an adjudicator’s decision was reached within the HGRCA timeframe and extensions of time granted by the applicant and or agreed by the parties. There was a statutory extension – together with a request for 2 additional days in response to late submissions by both parties of additional considerations. One party asked – the other acquiesced by conduct and continuing participation and submission. This amounted to implied / express consent to the final extention of time. The decision was delivered in time and was enforceable. In addition, the respondent was estopped by conduct from denying the extension. TCC. 31st May 2007 |
| by HHJ Peter Coulson. Crown Copyright |
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| Costs – defence withdrawn at last moment. Whether only fixed costs should be payable if the defendant to an issued claim admits or pays the sum claimed within a few days of the issue on or before the Acknowledgement of Service. Court allowed substantial costs since the defendant had forced the claimant to prepare to deal with allegations of absence of jurisdiction of the adjudicator. TCC. 18th December 2007. |
| by Mr. Justice Akenhead. Crown Copyright |
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| Notice : s108 Compliance : Held : A contractual requirement that the 28 day time limit runs from receipt of referral is compliant. Cl 38A5 JC Works /SC provided that a decision would be valid even if delivered after 28 days or agreed time : following Epping non-compliant : scheme applies. Time runs from receipt under the Scheme (Ritchie disapproved). Decision sent on due date valid even if after hours. Dispute in notice and referral the same - decision enforced excpet for costs - not allowed under Scheme - only under invalid GC Works reference. TCC. 1st February 2007. |
| by His Honour Judge Richard Havery QC. Crown Copyright |
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| Jurisdiction : Letter of intent, "Subject to Contract", provided for remuneration on the basis of "reasonable and substantiated direct costs of complying with this instruction" in the event that no contract is subsequently concluded. Held : An agreement based on "request and restitution" is not a contract. Also, oral agreements regarding "working hours, mechanisms of payment, variations, insurance and health and safety" were key provision which if not written precluded HGCRA adjudication. Adjudicator had no jurisdiction. Decision non enforceable. TCC. 19th January 2007. |
| by His Honour Judge David Wilcox : Crown Copyright |
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| Jurisdiction : Two points of claim adjudicated without consent contrary to Cluase 8(1) of Scheme : An application to appeal a refusal to enforce failed. During the paper submission the court indicated that it would not support an assertion that a failure to raise this point on jurisdiction during the adjudication resulted in estoppel or waiver. During the hearing an attempt to find a link between the two points on a technicality failed. CA. 14th May 2007 |
| by Dyson LJ; Waller LJ. Crown Copyright |
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| Double Jeopardy : Is a court in proceedings on a separate claim bound by determinations of fact made by an adjudicator where challenge to the adjudication is time barred? Adjudicator found remedial works involved only 1 week's work : Did this have implications for a claim for 4 weeks lost trading profit? Held : No : Judge not bound by that determination. Issue to go forward to trial on proof of loss. Outer House Ct of Session. 6th February 2007. |
| by Lord Drummond Young. Crown Copyright |
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| Entitlement to extension of time in a construction contract. Outer House Court of Session. 30th November 2007 |
| by Lord Drummond Young. Crown Copyright |
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| Quantum Meruit : Letters of intent : Adjudication decision unenforceable : Quantum meruit claim settled : Trial of outstanding issue - namely interest. Held : Interest at bank rate + 2% - with 50% downward adjustment in respect of 1 years interest due to failure to prosecute promtly by pursuing enforcement of an obviously unenforceable decision. Claim founded in restitution - not unjust enrichment - interest to run from date of final account + reasonable time to consider account. TCC. 20th March 2007. |
| by Mr Justice Jackson. Crown Copyright |
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Unsuccessful appeal against the 1st instance decision of Jackson J that an oral agreement was not implied into an entire agreement between contractor and sub-contractor. CA : 27th April 2007.
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| by May, Dyson; Smith LJJ. Crown Copyright |
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| Stay to adjudication - where contract required adjudication pre-litigation. Whether the same dispute as previously adjudicated giving rise to right to litigate : Held : Distinct and separate dispute : Stay granted. HGCRA optional scheme not applicable. TCC. 4th July 2007. |
| by HHJ Peter Coulson. Crown Copyright |
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| Domestic Contract. Court held that UTCCR in the circumstances of this complex case rendered the withholding provisions and the requirement of notices unfair. An adjudicators decision whilst enforceable despite errors of law could not override the statutory rights under the UTCCR. Summary enforcement application refused. Full trial of issues to follow. 4th May 2007 |
| by HHJ Thornton QC. Crown Copyright |
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| Application to strike out post adjudication trial of construction dispute : ground that particulars of claim are prolix ; unintelligible ; no clear case ; failure to comply with CPR. Held : “ I … have serious reservations about the competence of Mr Dunn. The criticisms of Mr Grant show that he has no idea how to draft a pleading. The nature of his submissions seriously leads me to doubt his judgment. My provisional view is that this is a matter where all the papers ought to be referred to the Bar Standards Board for the protection of the public. However before I take that step I shall hear submissions both from Mr Grant and Mr Dunn at the resumed hearing.” 11th July 2007. |
| by John Behrens : Crown Copyright |
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| Late decision. Application for enforcement. Parties agreed of time. Adjudicator declined to issue the decision (apparently reached by the extended date) pending payment of fees. He did not contract pre-payment terms. He released the decision two days later, despite not having been paid. Held : Decision had to be released on extension date. Out of jurisdiction - unenforceable. Ritchie : St Andrews Bay considered. TCC. 19th January 2007. |
| by His Honour Judge Richard Havery. Crown Copyright |
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Insolvency – adjudicate or wind up petition. Applicants for adjudication deterred from continuing on being informed that the defendant was insolvent. Commenced winding up petition – which failed when accounts revealed the company was solvent. Court nonetheless ordered costs to the petitioner. Appellant / defendant unsuccessfully appealed the costs order. Edinburg, 17th October 2007
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| by Sheriff Principal Edward F Bowen QC : Crown Copyright |
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| Written contract – letter of intent – validity of service : costs. Adjudicator found a written contract based on letter of intent. Service out of jurisdiction – in Jersey valid. Costs are recoverable even in an undefended action. TCC. 15th November 2007 |
| by Peter Coulson HHJ. Crown Copyright |
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| Security of Costs - counter-claim - stay pending payment : Post refusal of enforcement of adjudication litigation in respect of damages for collapse of building and counterclaim for payment. Security of costs in respect of counter claim ordered - with stay of counterclaim pending payment in. Main issue to proceed to trial. TCC. 9th February 2007 |
| by His Honour Judge Peter Coulson QC : Crown Copyright |
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| Engineer's liability for failure to advise on contractor's non-compliance with design specifications for temporary works and resultant collapse of facia and side wall during basement excavation activities. Held : Joint liability in contract & tort - together with special relationship extending liability to pure economic loss. 30th March 2007 |
| by Mr Recorder Roger Stewart Q.C. Crown Copyright |
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| Double jeopardy : Adjudication 1 - Applicant sought an adjudicator's declaration that contract terms sufficiently clear to enable sums allocated to sections to be calculated thus giving rise to a right to levy LADs. In adjudication 3 before a different adjudicator a return of LADs previously deducted sought - on grounds that it was not possible to allocate sums. Enforcement denied : Essentially the same dispute as 1st adjudication. TCC. 1st February 2007. |
| by Mr Justice Ramsey. Crown Copyright |
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| Settlement terms : inspection : Multiplex brokered a settlement with WNSL. Did the subcontractor have a right to inspect under the contract. Since the settlement resulted in a variation to the annex to the main contract and the sub contract provided a right to inspect the main contract documentation, this included any subsequent variations. Honeywell wished to ascertain whether or not the changes in turn had implications for claims they wish to pursue in adjudication/litigation. TCC. 27th February 2007 |
| by Mr Justice Jackson. Crown Copyright |
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| Natural Justice : Summary enforcement refused - adjudicator found on grounds not argued by the parties, without affording an opportunity for the issue to be addressed. TCC. 3rd January 2007. |
| by HHJ Gilliland : Crown Copyright |
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| Meaning of dispute : Work carried out by company promoter - contract concluded pre-incorporation. Following failure to honour applicantion No 6 post certification, in the absence of a withholding notice, notice of adjudication given first in companys name then later in promoters name Enforcement Act : defence - no dispute. Held : crystallisation occurred by date of final notice. Outer House, Court of Session. 9th July 2007. |
| by Lord Drummond Young : Crown Copyright |
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| Jurisdiction : Wrong ANB : CA overturned summary enforcement decision - arguable case that there was a valid deed that supplanted original construction contract - to the effect that the relevant ANB was governed by the T&C.Solicitors Rules and that there was a fee capping agreement in place. Judge had failed to explain why this evidence was dismissed. CA. 30th January 2007. |
| by Buxton LJ, Rix LJ, Moses LJ. Crown Copyright |
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| Suspension of works – non payment of VAT on decision. Whether or not notice of suspension of works valid for non-payment of VAT on an adjudicator’s decision. Application for preliminary issues. Case on-going. TCC. 3rd October 2007 |
| by Mr Justice Akenhead. Crown Copyright |
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| Pain & Gain – impact on payment of adjudication decision. (1) Is the risk/reward régime to be applied to all applications or only those after completion? The risk/reward régime, referred to as pain and gain, limits Ledwoods entitlement to payment of costs by reference to target hours. (2) Should the Adjudicators decision be given effect by applying his decision to Application 19 or Application 22? (3) If the risk/reward régime applies to applications for payment prior to completion, can the Joint Venture set off a sum in respect of an adjustment for risk/reward? Mr Justice Ramsey. TCC. 20th November 2007 |
| by Mr Justice Ramsey. Crown Copyright |
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| Construction Contract : Application for declaration that three construction contracts had been concluded for electrical works. Following a detailed analysis of correspondence court determined there was no concluded contract - rates not agreed. Whilst payment due on a quantum meruit basis - this would have to be pursued by litigation. Adjudication not available. Declaration refused. 17th May 2007 |
| by Mr Justice Jackson. Crown Copyright |
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| Insolvency : Administration : By a 3/2 majority the House of Lords restored the decision of Lord Clarke : Clause 27 JCT that suspends outstanding payments of all payments that accrue from a date 28 days prior to a contractor entering into administration pending the making up of a final account does not offend the HGCRA - and thus a sum due in the absence of a withholding notice 14 days before administration is not enforceable under the HGCRA. 25th April 2007 |
| by Lords Hoffmann, Hope, Walker, Mance & Neuberger : Crown Copyright |
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| Double jeopardy : The Gollege dispute sent on to arbitration by different legal personalities to the origing adjudication enforced in 2006. Arbitrator delivered an interim award on jurisdiction proclaiming current applicant the actual party to the contract & dispute. s67 AA 1996 jurisdiction reference - award set aside - personalities subject to determination by enforcing court - where any new evidence should have been canvassed. Issue now res judicata. 30th July 2007. |
| by His Honour Judge David Wilcox. Crown Copyright |
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| Insolvency : Stay of enforcement on the grounds of an asserted inability to repay - pending the outcome of the trial of cross claims. Whether cross claims arose out of the same matter. Adjudication and arbitration compared. Award enforced - appeal refused. TCC. 9th February 2007 |
| by His Honour Judge Peter Coulson QC : Crown Copyright |
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| Insolvency : Contested dispute : Written contract : Winding up petition for non-payment of progress claims : Held : questionable whether HGCRA applied - full terms of contract not written re scope of works and competion date : arguable whether EOT due - arguable counter claim for costs of refinancing and defective works. Petition denied. Chancery Division. 1st November 2007 |
| by Mr Justice Warren : Crown Copyright. |
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| Jurisdiction : Late delivery : Contract arose out of a letter of intent, written variation, oral agreements and subsequent practice. Held : No jurisdiction – not a written construction contract s105: Decision withheld pending payment by referring party : Held : Appearance of impartiality s12(a) Scheme – financially beholden to respondent : breach of s19 Scheme - not delivered promptly. Not enforceable. Delivered a day late – fax not used. TCC. 23rd May 2007. |
| by HHJ Anthony Thornton. Crown Copyright |
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| On going saga of the Wembly dispute : 11th preliminary issue : viz which party was responsible under the terms of the Supplemental Agreement for the cost of temporary works for the stadium roof. Court found in favour of Cleveland Bridge. TCC. 31st January 2007. |
| by Mr Justice Jackson. Crown Copyright |
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| Application for costs following this court's judgment in the second round of the litigation between Multiplex and Cleveland Bridge. Power of the court to award interim costs in relation to a distinct aspect of litigation without regard to the question of success in relation to the entire litigation - which is on-goping. 12th March 2007 |
| by Mr Justice Jackson. Crown Copyright |
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| Summary pending. CA. 21st December 2007 |
| by Pill LJ; May LJ; Smith DBE LJ. Crown Copyright |
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Disclosure : admissibility of 3rd party settlement terms : late appeal. Whether time was at large qua contractor / subcontractor as determined at adjudication. Whether terms of a settlement agreement involving the same issue admissible and subject to disclosure. Held No : Late application to appeal. Application heard but failed on the merits. Note : The "time at large" issue ongoing. TCC. 8th February 2007.
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| by Mr Justice Jackson : Crown Copyright. |
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| Time at large : Held : Not in the circumstances. Where a contract provides for notices for EOTs such notices must be provided - a default by the employer does not automatically put time at large. Contract provisions do not however inhibit a court or adjudicator from determining further extensions of time. Application to appeal refused. TCC. 6th March 2007 |
| by Mr Justice Jackson. Crown Copyright |
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| Jurisdiction - Declaration : Whether adjudicator had jurisdiction to determine meaning of documents contract required to be made available to main contractor post novation of design contract from employer and whether remedy available by summary judgement in event of non-compliance. Held : Jurisdiction - decaration granted : but question of compliance not amenable to summary judgement - issue set down for trial. TCC. 10th January 2007. |
| by His Honour Mr Justice Jackson. Crown Copyright |
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| Certificate : Valuation of works & EOT. A progress certificate for works done did not establish that a sum was due for the purposes of adjudication – since there is scope for deductions from that sum. TCC. 30th November 2007 |
| by Mr Justice Christopher Clarke. Crown Copyright |
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| Absence of withholding notices : Summary judgement application. three invoices issued for work done. 10% paid, balance outstanding. No withholding notices issued. Defendant asserts that the action should be dismissed. Defendants assertions dismissed. Outstanding issues to go to trial regarding adequacy of invoices etc. Sheriffdom of Tayside, Central & Fife at Cupar. 23rd October 2007 |
| by Sheriff Derek O Carroll : Crown Copyright |
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| Determination and payment of sums previously due : Court analysed Melville Dundas v Wimpey which held that JCT clauses 27.6.5.1 complies with s110 / 111 HGCRA : then held on the facts that the sums were due 28 days before determination and had been unreasonably withheld in that there were no withholding notices issued. What is unreasonable must be judged at time of withholding not in light of subsequent events. Summary judgement granted. 17th July 2007. |
| by HHJ Peter Coulson. Crown Copyright |
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| Jurisdiction : Defence to enforcement : Whether a contract : whether replaced & reference under wrong contract : crystallisation : ad hoc reference - counterclaim & submission to adjudication : jurisidiction over jurisdiction. 15th March 2007 |
| by HHJ Thornton. Crown Copyright |
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| Notice of determination for non payment. Where a notice of non-completion giving rise to LADs is overtaken by an extension of time the right to deduct continues - albeit with a duty to repay excess deductions within a reasonable time. A payment with deducted LADS is a valid payment - so a notice of termination for non-payment is not valid. A Bell & Son (Paddington) Ltd v CBF Residential Care and Housing Association 46 BLR 102 considered. See appeal to H/L 2008 regarding validity of initial notice under the HGCRA. CA. 21st June 2007 |
| by Mummery LJ; Arden LJ; Dyson LJ. Crown Copyright |
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| Validity of default adjudication where the defendant recieved no notice of the process. Held : The adjudication process is invalid - so the adjudication decision is unenforceable. Application dismissed with costs - following the previous determination of Jackson J setting aside a default enforcement judgment in 2006. TCC. 26th March 2007. |
| by Thornton J. Crown Copyright |
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| Interest post enforcement. Interest, post enforcement runs from the date of the court judgement, not from the date when monies were due under the contract – which matter was one for the adjudicator, not the court. TCC. 30th October 2007. |
| by Mr Justice Akenhead. Crown Copyright |
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| Meaning of dispute - Crystalisation. Following practical completion Ringway submitted interim application No11 which included claims arising out of an asserted EOT and variations. V prevaricated over an extended period of time and a number of attempts were made to engage in negotiations. Eventually R commenced adjudication asserting that under the contract terms payment under an application became due in the absence of withholding notices. The adjudicator awarded the application sum. Here, V resisted payment on the grounds that no dispute had crystallised or alternatively that the adjudicator’s task was to determine the final account. The court agreed with the adjudicator that the dispute was about non-payment of an interim account and enforced the decision. TCC. 23rd October 2007 |
| by Mr Justice Akenhead. Crown Copyright |
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| Written contract – variations – signature on decision : inability to repay. Enforcement application : whether variation of a contract impacted upon its status and jurisdiction of adjudicator – here a non HGCRA adjudication – held adjudicator had jurisdiction : whether a failure to sign a decision renders it unenforceable – held – signature not a requirement. No stay allowed on grounds of insolvency in the circumstances of the case. TCC. 25th October 2007 |
| by Mr Justice Akenhead. Crown Copyright |
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| Fire : Post adjudication challenge to decision that contractor not liable to loss due to fire where the contract required the employer to provide joint insurance against the risk and had failed to do so. Co-operative Retail Services Ltd v Taylor Young Partnership Ltd [2002] applied. TCC. Salford. 29th June 2007. |
| by Gilliland J. Crown Copyright |
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| Legal personality. Technical defence to enforcement of adjudication decision (related to EOTs etc) mounted on the basis that the adjudication was pursued by Mr not Mrs Williams (t/a Sanclair) : Mr Williams carried out the work converting a takeaway into a restaurant. Defence rejected. TCC, Cardiff District Registry. 29th November 2007 |
| by Hickinbottom HHJ. Crown Copyright |
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