The main contractor, Shepherd, appealed against a decision that it could not rely on a ‘pay when paid’ clause in its sub-contracts with the respondent in order to refuse payment to them after the employer went into administration. The clause stated that the employer was to be considered "insolvent" if an administration order was made against it under the Insolvency Act 1986 Pt II, or if an administrative receiver was appointed or if a winding up order was made. When the 1986 Act was amended by t ...
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This case considered the issue of Tolent clauses and their compliance with the HGCRA. The contract between the parties required the referring party to an adjudication to pay both parties’ costs and the adjudicator’s fees regardless of the outcome of the adjudication. Crucially, the Tolent clause concerning the costs of the adjudication only applied to the contractor – it did not apply to the employer if it started an adjudication. The Judge held that the clause was not compliant with the HGCRA. ...
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This case concerned a builder’s concurrent duties in tort and contract in relation to economic loss. The Court held that the general rule that a builder does not owe a duty of care to owners or occupiers for economic loss is not intended to exclude circumstances where there is a “special relationship of proximity” for example, when the builder is also in a contractual relationship with a client. In principle, therefore, a builder will owe a tortuous duty of care to his client, ...
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This case concerned the issue of two conflicting interim payment provisions. The Court reiterated the general rule that where a term has been specifically drafted for the contract in question, that term will take precedence over a standard term (in this case the JCT Design and Build Contract (rev 1) 2007). However, this rule is rebuttable and can be overridden by an express term of a contract. Clause 1.3 of the JCT conditions provides that “The Agreement and these Conditions are to be read ...
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Supreme Court - Press Summary The Respondents, Barratt Homes Limited, were engaged in building a substantial development of homes and a primary school in Llanfoist, near Abergavenny in Monmouthshire. They sought to exercise the right of a property owner under s 106 Water Industry Act 1991 to connect the drains to the public sewer at a point close to the development. The appellant sewerage undertakers, Welsh Water, argued that it was entitled to insist on a connection at point some 300m furthe ...
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This case concerned a dispute about whether, as a result of an adjudicator’s failure to consider allegedly relevant evidence, he had breached the rules of natural justice and thereby rendered the subsequent award unenforceable. The Court held that it was within an adjudicator’s jurisdiction to decide what evidence was admissible and, indeed, what evidence was helpful and unhelpful in the determination of the dispute referred to him. Even if the adjudicator’s decision to disregard evidence as ina ...
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This case provides further guidance on the meaning of a “reasonable settlement” in cases where one party A seeks to recover from party C sums paid in a settlement to party B. The Court of Appeal held that because of its uncertainty and expense, prudent parties usually try to avoid litigation. The settlement value of a claim is not an objective fact but a matter of subjective opinion, taking into account all the variables. The Court only has to consider whether the settlement was within the range ...
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E, the contractor, was engaged to do works under a PPP contract with S the local authority. Following discovery of asbestos in the works, E claimed declarations that the works were delayed and that it was entitled to postponement of work plus a claim for compensation. However, the judge held that, pursuant to the clauses of the PPP contract, E had failed to give sufficient notice to S. Notice was agreed to be a condition precedent to the right of E to claim compensation or relief. Further, such ...
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The case concerned enforcement of an adjudicator’s decision where it was asserted by the resisting party, P, that there had been various issues referred that had not been in dispute at the time of the Notice of Adjudication. P, the employer, had given A, the contractor, a first notice indicating various aspects of work with which P was not satisfied. Following a second notice, P determined the contract and ejected A from site. The judge held that there had been a dispute about whether there were ...
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The case considered whether the defendant builder, K, had been in repudiatory breach of contract or, alternatively, whether termination of the construction contracts by the claimants, S and T, in itself constituted repudiatory conduct. K had agreed to carry out construction works at three properties owned by S or T (T being a director of S). S and T had purported to terminate the contracts by way of the K’s alleged repudiatory conduct, and which included delay and defects. K had transferred his ...
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