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(2009) 25 Const. L.J. 567-690 T.C.L.R. T123T136 (Case 10)
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2009
Vol. 25 No. 8
Editorial
Articles
Liquidated Damages
Dr Hamish Lal
Dispute Resolution in NEC3User Unfriendly?
Ben Beaumont
Construction Act Review
Case Law Subject Index
Cases
Aedas Architects Ltd v Skanska Construction UK Ltd

Thomas Vale Construction Plc v Brookside Syston Ltd
Information
Technology and Construction Law Reports
City & General (Holborn) Ltd v Structure Tone Ltd
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Construction
Law Journal
CONTENTS
(2009) 25 Const. L.J. 567690, T123T136
Editorial
567
Articles
Liquidated Damages
Dr Hamish Lal
569

Ben Beaumont
591

Case Law Subject Index
613
Cases
670
Thomas Vale Construction Plc v Brookside Syston Ltd 675

Information
Changes to the Construction Act
684

T123
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The Construction Law Journal is tailored for the needs of lawyers, architects,
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Editorial
Our first article grapples with that old chestnut, the extent to which contracting
parties can specify their own remedies in the event of breach. Under the
simple rubric of Liquidated Damages, Dr Hamish Lal, now a partner at Jones
Day, provides an extensive exploration of this enduring topic. Lal analyses the
development of the law under three headings, the first considers the test to
be applied to what might otherwise be considered to be penalty clauses, the
second examines the extent to which sums of money are payable. The final
section considers whether liquidated damages are always an exclusive remedy.
Dr Lal concludes that agreements should be considered carefully, for whilst the
basic compensatory model may be too basic a test, sums that may appear to
be liquidated damages may, in fact, not be so.
In our second article, the Junior Vice Chairman of the Adjudication Society,
Ben Beaumont, considers the dispute resolution procedures in the NEC3 form
of contract. Dispute Resolution in NEC3User Unfriendly? dissects the
alternative dispute resolution options under NEC3, W2 where the HGCR Act
applies, and W1 where it does not. Championing the cause of the Adjudicator,
Mr Beaumont points out the shortcomings of contractual procedures, including
missing words and incorrect tenses and bewails the fact that this important
document is published in this disjointed and abbreviated manner. His ultimate
complaint is that the clauses are unnecessarily complex and do not therefore
make for good contractual relations or good contract management.
We welcome the return of the Construction Act Review and the 9th annual case
law subject index. This lists over 300 cases concerning the HGCR Act both in
alphabetical order and by subject, providing a useful research tool for this area
of the law.
The cases section reports two cases, both concerning withholding notices under
s.111 of the HGCR Act. The first, Aedas Architects Ltd v Skanska Construction
UK Ltd, is a judgment of the Outer House, Court of Session in Scotland.
Lord McEwan rejected Aedass application for summary judgment, where
the architects claimed that Skanskas withholding notices were ineffective. In
particular they argued that there was no attribution on any of the notices and
that they therefore did not comply with s.111. Skanska relied upon the decision
of HHJ Frances Kirkham in Thomas Vale Construction plc v Brookside Syston
Ltd to the effect that withholding notices should not be subjected to fine textual
analysis. Lord McEwan agreed that any deficiencies in the notices were not
sufficient to entitle Aedas to summary judgment.
Secondly, we report the decision of HHJ Kirkham referred to. The claimant
contractors applied for a declaration that the withholding notice was invalid
for four reasons including that the damages claimed did not flow from the
breach. Judge Kirkham rejected the claimants claim, finding that the arguments
567
568
relied upon were artificial and contrived. The withholding notice, she held, was
intended only to communicate why payment was not being made and should
not be subjected to fine contextual analysis.
The Information Section contains a useful update on the progress of the
Local Democracy, Economic Development and Construction Billthe statutory
vehicle for the long awaited changes to the HGCR Act. David Cordery, solicitor
with Maxwell Winward, considers the amendments to the payment procedures
and adjudication under the Act, particularly the repeal of the s.107 requirement
for a construction contract to be in writing. He concludes that the draft Bill is
a disappointment, failing to please even some of the people some of the time.
Finally, the Technology and Construction Law Reports include City & General
(Holborn) Ltd v Structure Tone Ltd, a decision of Christopher Clarke J., sitting
in the Technology and Construction Court. The case concerned the procedural
problems of extending time for service of a claim form. In this case the
claimants solicitors had been informed by the TCC case administration unit
that their application to extend time for service of the claim forms would be
treated as being made in time, pending the judges deliberation. Nevertheless
Clarke J. set the claim forms aside holding that even if the claimant had been
led to believe there would be a short extension, the outcome still depended on
the judges decision. As the commentary points out, the facts of this case were
unusual but not unprecedented. The case provides a short but important lesson
that nothing short of a binding order can be relied upon.
(2009) 25 Const. L.J. No. 8 2009 Thomson Reuters (Legal) Limited and Contributors
Liquidated Damages
By Dr Hamish Lal*
Liquidated damages; Penalty clauses; Remedies
Introduction
A question laden with jurisprudential tension, rich in judicial commentary and
of fundamental legal, practical and commercial significance for construction
lawyers and decision makers is this:
To what extent does English law allow parties to a contract to specify
their own remedies in damages in the event of breach?
Put simply, penalty clause remedies are not allowed but liquidated damages
clauses are.1 This so-called rule against penalties is an exception to the general
principle of English law that a contract should be enforced in accordance with
its terms.2
This prohibition3 of the penalty clause is said to be consistent with the English
law treatment of damages: damages are compensatory and that to allow a clause
which allows recovery of damages in excess of the actual loss suffered or
sufferable would be wrong. The damages would be more of a deterrent, designed
to discourage breaches of contract or to secure performance by the contractor,
than compensation. This is clear in the statement of Lord Roskill in Export
Credits Guarantee Department v Universal Oil Products Co:
Dr Hamish Lal BEng, BA(Oxon), PhD is a Solicitor-Advocate and Partner in Dundas & Wilson
LLP. This article was presented to a Society of Construction Law Meeting hosted by the University
of Central Lancashire on October 15, 2008 and is published with the very kind permission of the
Society of Construction Law.
1 It is generally accepted that liquidated damages clauses have benefits for both parties to a
contract. However, there are some authors who state otherwise. See for example, Tony Binghams
article Its a lads thing Building, November 28, 2008: Lawyers tend to explain what a good thing
they [LADs] are, because they let everyone know the exact sum to be shelled out and allow the
contractor to foresee the precise consequences of delay. This is rubbish. Contractors utterly loathe
LADs, no matter what unlikely fancy dress you stick them in. They are a sword hanging by a hair
directly above their head. Try to persuade any contractor that they are not penalties and you will
fail. And knowing that late completion is going to snap the thread leads to all sorts of disputes. I
reckon the neon sign of LAD does more harm than good.
2 See, for example, the comments of Chadwick L.J. in Euro London Appointments Ltd v Claessens
International Ltd [2006] EWCA Civ 385 CA.
3 See AWB Simpson, The Penal Bond with Conditional Defeasance (1966) 82 L.Q.R., 392422,
which demonstrates that English law has not always decried all penalties in commercial
contracts/instruments. Penal bonds were common until the mid 17th century.
569
570

. . . one purpose, perhaps the main purpose, of the law relating to penalty
clauses is to prevent a plaintiff recovering a sum of money in respect of
a breach of contract committed by a defendant which bears little or no
relationship to the loss actually suffered by the plaintiff as a result of the
breach by the defendant.4
And more recently in the statement of Arden L.J. in Murray v Leisureplay Plc:
So far as pre-determined damages clauses are concerned, English contract
law recognises that, if the parties agree that a party in breach of contract
shall pay an unjustifiable amount in the event of a breach of contract, their
agreement is to that extent unenforceable. The reasons for this exception
may be pragmatic rather [than] principled.5
Arden L.J. then cited the following comments of Diplock L.J. in Robophone
Facilities Ltd v Blank :
I make no attempt, where so many others have failed, to rationalise this
common law rule. It seems to be sui generis. The court has no general
jurisdiction to re-form terms of a contract because it thinks them unduly
onerous on one of the partiesotherwise we should not be so hard put to
find tortuous constructions for exemption clauses, which are penalty clauses
in reverse; we could simply refuse to enforce them... . . But however
anomalous it may be, the rule of public policy that the court will not enforce
a penalty clause so as to permit a party to a contract to recover in an
action a sum greater than the measure of damages to which he would be
entitled at common law is well established, and in these days when so often
one party cannot satisfy his contractual hunger a` la carte but only at the
table dhote of a standard printed contract, it has certainly not outlived its
usefulness.6
[Emphasis added.]
Unsurprisingly, many myths abound when one considers liquidated damages.7
This article seeks to address some of those myths. Part A considers whether
the compensatory model really is at play, or if there is another test for the
4 Export Credits Guarantee Department v Universal Oil Products Co [1983] 2 All E.R. 205;
[1983] I W.L.R. 399; 23 B.L.R. 106 HL at 224.
5 Murray v Leisureplay Plc [2005] EWCA Civ 963 at [29].
6 Robophone Facilities Ltd v Blank [1966] 1 W.L.R. 1428; [1966] 3 All E.R. 128 CA at
14461447.
7 As discussed above, the courts appear to take the view that liquidated damages serve the useful
purpose of promoting commercial certainty and avoiding litigation. In Clydebank Engineering &
Shipbuilding Company Ltd v Yzquierdo y Casteneda [1905] A.C. 6 HL at [11], Lord Halsbury
said: It is obvious on the face of it that the very thing intended to be provided against by this
pactional amount of damages is to avoid that kind of minute and somewhat difficult and complex
system of examination which would be necessary if you were to attempt to prove the damage.
In Robophone [1966] 1 W.L.R. 1428 at 1447, Diplock L.J. said: It is good business sense that
parties to a contract should know what will be the financial consequences to them of a breach on
their part, for circumstances may arise when further performance of the contract may involve them
in loss. . . . Not only does it enable the parties to know in advance what their position will be if a
breach occurs and so avoid litigation at all, but if litigation cannot be avoided, it eliminates what
may be the very heavy legal costs of proving the loss actually sustained which would have to be
paid by the unsuccessful party. The court should not be astute to descry a penalty clause in every
provision of a contract which stipulates a sum to be payable by one party to the other in the event
of a breach by the former.
Liquidated Damages
571
enforceability of liquidated damages that really determines the cases. Part B

examines the fact that a sum of money payable otherwise than on a breach of
contract cannot be a penalty (regardless of its size and variance to actual loss),
and Part C considers whether liquidated damages are always an exclusive
remedy.
Summary of conclusions
1. The compensatory model is, in practice, far too basic a test. The case
law indicates that a clause will not be struck down as a penalty where
there is no oppression, and where the clause is commercially justifiable,
provided always that its dominant purpose was not to deter the other
party from breach.8 The courts appear to be reluctant to descry a penalty
clause and are predisposed to uphold contractual terms fixing the level
of damages for breach, particularly in the case of commercial contracts
freely entered into between the parties of comparable bargaining power.
2. Documents and agreements need to be reviewed very carefully. Sums
that may appear to be liquidated damages may in fact not be so. English
law provides that a sum of money (or some other tangible benefit)
which is payable otherwise than on a breach of contract cannot be a
penalty. Agreements which are tangential to construction contracts (such
as agreements for lease or development agreements) and which allow,
for example, for the payment of rent-free periods when there is a delay
to completion of the demise, do not fall foul of the rule against penalties
(regardless of how steep the graduated rent-free payments are).
3. It is submitted that where it is possible to recognise and distinguish cost
and expense that results from delay in completion from cost and expense
which is referable to some other breach of contract (such as failure
to proceed regularly and diligently), these latter damages, even though
related to the delay in completion, may be recoverable, notwithstanding
the apparently exhaustive nature of the liquidated damages provision.
There are cases that support this approach when dealing with the impact
of breaches that can or do cause delayespecially when delay to
completion has not occurred.
A. The test for a penalty
So what is the definitive test to be applied to assess whether a clause is a
penalty? This can be distilled from a review of a number of seminal cases.
A useful starting point is the classic statement9 by Lord Dunedin in Dunlop
Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd :
8 Jeancharm Ltd (t/a Beaver International) v Barnet Football Club Ltd [2003] EWCA Civ 58 is
an exceptional case. The Court of Appeal held that an interest rate of 5% per week for late payment
was a penalty and therefore unenforceable. In particular, their Lordships held that the decision in
Philips Hong Kong Ltd v Attorney General of Hong Kong 61 B.L.R. 41; (1993) 9 Const. L.J. 202
PC did not depart from the law as laid down in Dunlop Pneumatic Tyre Co Ltd v New Garage &
Motor Co Ltd [1915] A.C. 79, and there was no abandonment of the rule that a clause should be a
genuine pre-estimate of damage. In Jeancharm, the parties agreed that if Barnet was late in paying,
it had to pay interest at 5% per week. If Jeancharm were late in delivering, they had to pay 20
pence per garment per day. Peter Gibson L.J. set out four principles relevant for distinguishing a
penalty clause from a valid contractual provision for payment.
9 Per Arden L.J. in Murray v Leisureplay [2005] EWCA Civ 963 at [34].
572

1. Though the parties to a contract who use the word penalty or
liquidated damages may prima facie be supposed to mean what
they say, yet the expression used is not conclusive. The Court
must find out whether the payment stipulated is in truth penalty or
liquidated damages. This doctrine may be said to be found passim
in nearly every case.
2. The essence of a penalty is a payment of money stipulated as in
terrorem of the offending party; the essence of liquidated damages
is a genuine covenanted pre-estimate of damage (Clydebank
Engineering and Shipbuilding Company v Yzquierdo y Castaneda).
3. The question whether a sum stipulated is penalty or liquidated
damages is a question of construction to be decided upon the terms
and inherent circumstances of each particular contract, judged of
[sic] as at the time of the making of the contract, not as at the time
of the breach (Public Works Commissioner v Hills and Webster v
Bosanquet).
4. To assist this task of construction various tests have been suggested,
which if applicable to the case under consideration may prove
helpful, or even inclusive. Such are:
(a) It will be held to be [a] penalty if the sum stipulated for
is extravagant and unconscionable in amount in comparison
with the greatest loss that could conceivably be proved to
have followed from the breach. (Illustration given by Lord
Halsbury in [the] Clydebank case.)
(c) There is a presumption (but no more) that it is a penalty
when, a single lump sum is made payable by way of
compensation, on the occurrence of one or more or all of
several events, some of which may occasion serious and others
but trifling damage. (Lord Watson in Lord Elphinstone v
Monkland Iron and Coal Company.)
On the other hand:
(d) It is no obstacle to the sum stipulated being a genuine
pre-estimate of damage, that the consequences of the breach
are such as to make precise pre-estimation almost an impossibility. On the contrary, that is just the situation when it
is probable that pre-estimated damage was the true bargain
between the parties (Clydebank case, Lord Halsbury; Webster
v Bosanquet, Lord Mersey).10
10 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 CA at 8688. In
that case, The clause in question was a standard form, imposed on all of Dunlops customers, that
required the payment of 5 by way of liquidated damages if the customer did any one of the acts
of tampering with marks on the goods; selling at under list price; supplying to persons blacklisted
by Dunlop; or exporting without Dunlops consent.
Liquidated Damages
573
The second seminal case is Alfred McAlpine Capital Projects v Tilebox.11 In that
case, Jackson J. (as he then was) conducted a thorough analysis of a number of
authorities, distilled them and formulated a set of rules or propositions.
The learned judge looked at Robophone, where the Court of Appeal, by a
majority, upheld a liquidated damages clause in a hiring contract.12 It is
noteworthy that Jackson J. highlighted that:
The relevant clause in this case was subject to closer arithmetical scrutiny
than appears to have been applied in earlier cases, before a decision was
reached that this was a reasonable pre-estimate of the loss.13
[Emphasis added.]
Jackson J. then adds,
At the end of his judgment, at page 1449, Diplock LJ said this: I see no
reason in public policy why the parties should not enter into so sensible
an arrangement under which each know where they stand in the event of
a breach by the defendant, and can avoid the heavy costs of proving the
actual damage if litigation ensues. And I see no ground in authority which
would permit, much less compel me to hold that this clause is a penalty
clause and so unenforceable by the courts. . ... 14
[Emphasis added.]
The judge then considered the widely used Philips Hong Kong Ltd v Attorney
General of Hong Kong.15 Here, the Privy Council upheld the decision of the
Hong Kong Court of Appeal that the liquidated and ascertained damages clause
in a construction contract was valid and enforceable. Emphasis was placed on
the leading judgment of Lord Woolf, who stated:
Except possibly in the case of situations where one of the parties to the
contract is able to dominate the other as to the choice of the terms of
a contract, it will normally be insufficient to establish that a provision
is objectionably penal to identify situations where the application of the
provision could result in a larger sum being recovered by the injured party
than his actual loss. Even in such situations so long as the sum payable in
the event of non-compliance with the contract is not extravagant, having
regard to the range of losses that it could reasonably be anticipated it would
have to cover at the time that the contract was made, it can still be a genuine
pre-estimate of the loss that would be suffered and so a perfectly valid
liquidated damage provision. The use in argument of unlikely illustrations
should therefore not assist a party to defeat a provision as to liquidated
damages. As the Law Commission stated in Working Paper No 61 (page
30): The fact that in certain circumstances a party to a contract might
derive a benefit in excess of his loss does not. . ... outweigh the very definite
11 Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281; [2005] B.L.R. 271;
104 Con. L.R. 39 TCC.
12 Robophone [1966] 1 W.L.R. 1428.
13 McAlpine v Tilebox [2005] EWHC 281 at [44].
14
McAlpine v Tilebox [2005] EWHC 281 at [44].
15 Philips v Attorney General of Hong Kong 61 B.L.R. 41.
574

practical advantages of the present rule upholding a genuine estimate,
formed at the time the contract was made of the probable loss. A difficulty
can arise where the range of possible loss is broad. Where it should be
obvious that, in relation to part of the range, the liquidated damages are
totally out of proportion to certain of the losses which may be incurred,
the failure to make special provision for those losses may result in the
liquidated damages not being recoverable. (See the decision of Court of
Appeal on very special facts in Ariston SRL v Charly Records Ltd (1990)
The Independent 13 April 1990.) However, the court has to be careful
not to set too stringent a standard and bear in mind that what the parties
have agreed should normally be upheld. Any other approach will lead to
undesirable uncertainty, especially in commercial contracts.16
[Emphasis added.]
Having considered the above authorities, Jackson J. made four general observations, frequently cited in pleadings in domestic and international construction
disputes. The observations are:
1. There seem to be two strands in the authorities. In some cases
judges consider whether there is an unconscionable or extravagant
disproportion between the damages stipulated in the contract and
the true amount of damages likely to be suffered. In other cases
the courts consider whether the level of damages stipulated was
reasonable. Mr Darling submits, and I accept, that these two strands
can be reconciled. In my view, a pre-estimate of damages does
not have to be right in order to be reasonable. There must be a
substantial discrepancy between the level of damages stipulated in
the contract and the level of damages which is likely to be suffered
before it can be said that the agreed pre-estimate is unreasonable.
2. Although many authorities use or echo the phrase genuine preestimate, the test does not turn upon the genuineness or honesty of
the party or parties who made the pre-estimate. The test is primarily
an objective one, even though the court has some regard to the
thought processes of the parties at the time of contracting.
3. Because the rule about penalties is an anomaly within the law
of contract, the courts are predisposed, where possible, to uphold
contractual terms which fix the level of damages for breach. This
predisposition is even stronger in the case of commercial contracts
freely entered into between parties of comparable bargaining
power.
4. Looking at the bundle of authorities provided in this case, I note
only four cases where the relevant clause has been struck down as
a penalty. These are Commissioner of Public Works v Hills [1906]
AC 368, Bridge v Campbell Discount Co Limited [1962] AC 600,
Workers Trust and Merchant Bank Limited v Dojap Investments
Limited [1993] AC 573, and Ariston SRL v Charly Records (Court
16 McAlpine v Tilebox [2005] EWHC 281 at [45], citing Philips v Attorney General of Hong Kong
61 B.L.R. 41 at 5859.
Liquidated Damages
575
of Appeal 13th March 1990). In each of these four cases there

was, in fact, a very wide gulf between (a) the level of damages
likely to be suffered, and (b) the level of damages stipulated in the
contract.17
[Emphasis added.]
Jackson J. did not speak solely of a compensatory model, or focus on the
objective mismatch between the sums stated in the contract and the most likely
damages recoverable for breach. Instead, his analysis and decision appears to
be concerned more with:
the public policy of enforcing clauses that fix the level of damages;
the courts predisposition to uphold such clauses;
the practical advantages of upholding terms;
the risk of uncertainty if the above are not followed18 ; and
the possibility of exploiting the fact there has been domination by one
party when the contract was formed.
A more intrusive approach was advocated in the next case, Murray v Leisureplay. Arden L.J. suggested the following practical step by step guide as to
the questions which the court should ask when considering the question of
penalties:
(i) To what breaches of contract does the contractual damages
provision apply?
(ii) What amount is payable on breach under that clause in the parties
agreement?
(iii) What amount would be payable if a claim for damages for breach
of contract was brought under common law?
(iv) What were the parties reasons for agreeing for the relevant
clause?
(v) Has the party who seeks to establish that the clause is a penalty
shown that the amount payable under the clause was imposed in
terrorem, or that it does not constitute a genuine pre-estimate of
loss for the purposes of the Dunlop case, and, if he has shown the
latter, is there some other reason which justifies the discrepancy
between (i) and (ii) above?19
17
McAlpine v Tilebox [2005] EWHC 281 at [48].

There also appears to be a judicial desire to preserve freedom to contract. In Elsley v Collins
Insurance Agencies Ltd (1978) 83 D.L.R. (3d) 1, Supreme Court (Canada), Dickson J. said: It is
now evident that the power to strike down a penalty clause is a blatant interference with freedom
of contract and is designed for the sole purpose of providing relief against oppression for the party
having to pay the stipulated sum. It has no place where there is no oppression. Further, in Philips
v Attorney General of Hong Kong 61 B.L.R. 41 at 59, Lord Woolf said: . . . the court has to
be careful not to set too stringent a standard and bear in mind that what the parties have agreed
should normally be upheld. Any other approach will lead to undesirable uncertainty especially in
commercial contracts.
19 Murray v Leisureplay [2005] EWCA Civ 963 at [54].
18
576
Arden L.J. then considered the question of evidence available to the tribunal:
What happens if there is no evidence about the reasons for the clause?
There would in my judgment be no reason why the court could not draw
inferences of fact as to the reasons and as to the genuineness of those
reasons. What if it appears from the evidence that is given (or from the
inferences that the court makes from the facts) that the decision to include
the damages clause was included on the basis of a mistaken belief that the
damages at common law would be assessed on a materially more generous
basis than in fact would occur? This would be the case if for example the
parties failed to have regard to the fact that a party would have to give
credit for a benefit that he obtained on breach, such as a tax saving as
a result of the receipt of damages for lost income in the form of a lump
sum payment of damages. In my judgment, the good faith belief of the
parties is not the deciding factor here. The court would look at the result
and (bearing in mind that the onus is on the party challenging the clause
to establish that it is a penalty) ask whether it is satisfied that the parties
could not, if they had had the proper information or considerations in front
of them, genuinely have considered that the damages payable under the
contractual provision were a realistic pre-estimate of the damages payable
on breach at common law.20
[Emphasis added.]
Arden L.J. appears to be advocating an intrusive approach, whereby the court,
in effect, tests the genuineness of the pre-estimate and is rather less concerned
with the public policy reasons for upholding penalty clauses.
Murray v Leisureplay is not a construction case; it was concerned with whether
a clause in a directors service agreement, which provided for payment of a
years gross salary in the event of termination of the directors employment
without one years notice, was unenforceable as a penalty. In many cases,
Murray v Leisureplay will be a useful guide. It is noteworthy that this test
has not been discarded as simply inapplicable for use in construction contracts,
although, in his book The Interpretation of Contracts, Lewison J. states that, in
some cases, a broader approach will be necessary.21
Indeed, broader approaches were advocated by Clarke L.J. and Buxton L.J. in
that case. Clarke L.J.s test can be summarised as:
(i) Given the general principle that pacta sunt servanda, the courts
should be cautious before holding that a clause in a contract of
this kind is a penalty.
(ii) The modern approach to Lord Dunedins test in Dunlop Pneumatic Tyre v New Garage and Motor Co Ltd [1915] AC 67 at 86
is to be found in Lordsvale Finance plc v Bank of Zambia [1996]
QB 752 per Colman J at page 762G and Cine Bes Filmcilik Ve
Yapim Click v United International Pictures [2003] EWCA Civ
1699.
20
21
Murray v Leisureplay [2005] EWCA Civ 963 at [55].

Sir Kim Lewison, The Interpretation of Contracts (Sweet & Maxwell, 2007), p.594.
Liquidated Damages
577
(iii) It is perhaps no longer entirely appropriate to ask whether a

payment on breach was stipulated in terrorem of the offending
party but, as Colman J put it in the Lordsvale case at page 762G
(in a passage quoted by both Arden and Buxton LJJ): whether a
provision is to be treated as a penalty is a matter of construction
to be resolved by asking whether at the time the contract was
entered into the predominant contractual function of the provision
was to deter a party from breaking the contract or to compensate
the innocent party for breach.
(iv) Colman J continued: That the contractual function is deterrent
rather than compensatory can be deduced by comparing the
amount that would be payable on breach with the loss that might
be sustained if the breach occurred. I do not read Colman J
as saying there that, if that comparison discloses a discrepancy,
it follows that the clause is a penalty. It seems to me that the
comparison is relevant but no more than a guide to the answer
to the question whether the clause is penal: see eg Philips Hong
Kong v A-G of Hong Kong (1993) 61 BLR 49 per Lord Woolf at
58-9.
(v) In paragraph 15 of his judgment in the Cine case (set out by
Arden LJ at paragraph 39) Mance LJ quoted a further passage
from the judgment of Colman J in the Lordsvale case (at pages
763g-764a) where he said that a particular clause might be
commercially justifiable, provided that its dominant purpose was
not to deter the other party from breach.
(vi) As I see it, each case depends upon its circumstances and, in
considering those circumstances, the court should have in mind
the warnings to which Arden and Buxton LJJ have adverted.
They include the importance to the parties both of knowing what
will be the financial consequences to them of a breach of contract
(Robophone Facilities v Blank [1966] 1 WLR 1428 per Diplock
LJ at 1447) and of avoiding disputes (Kemble v Farren 1829 6
Bing 141 per Tindal CJ at 148). They also include the statements
to the effect that a clause will only be held to be a penalty if
the sum payable on breach is extravagant or unconscionable: see
eg the Philips Hong Kong case per Lord Woolf at page 59 and
Dunlop per Lord Dunedin at page 87.
...
(xi) It is in my opinion important to avoid nice calculations but to
look at the question in the round. It was not for Mr Murray to
justify the clause but for the respondent to show that it was a
penalty. It adduced no or no sufficient evidence that the clause
was unconscionable.22
[Emphasis added.]
The strongest support for the older, and less intrusive, approach came from
Buxton L.J.:
22
578

I venture to disagree with that approach [of Arden LJ] because it
introduces a rigid and inflexible element into what should be a broad
and general question. It is also inconsistent with warnings by judges of
high authority that, at least in connexion with commercial contracts, great
caution should be exercised before striking down a clause as penal ; and
with the tests that they have postulated to that end. My Lady has cited in
her paragraph 66 the observations of Diplock LJ in Robophone v Blank
[1966] 1 WLR 1428 at p 1447. I would add the well-known passage of Lord
Woolf in Philips Hong Kong v A-G of Hong Kong (1993) 61 BLR 49 at pp
58-59: Except possibly in the case of situations where one of the parties
to the contract is able to dominate the other as to the choice of the terms
of a contract, it will normally be insufficient to establish that a provision
is objectionably penal to identify situations where the application of the
provision could result in a larger sum being recovered by the injured party
than his actual loss. Even in such situations so long as the sum payable in
the event of non-compliance with the contract is not extravagant, having
regard to the range of losses that it could reasonably be anticipated it would
have to cover at the time the contract was made, it can still be a genuine
pre-estimate of the loss that would be suffered and so a perfectly valid
liquidated damages provision.
And exclusive concentration on the factual difference between the liquidated
and the contractual damages overlooks a principal test formulated by Lord
Dunedin to identify a penalty, [1915] AC at p 87, that It will be held to
be a penalty if the sum stipulated for is extravagant and unconscionable
in amount in comparison with the greatest loss that could conceivably be
proved to have followed from the breach....
Dunlop differed from the present case in that the House was impressed by
the difficulty of proving an exact loss in every, or any, of the many cases
of breach to which the clause extended. That particular problem does not
affect our case. But the cautious approach of the House, and its willingness
to look at the clause in its commercial context, does at least underline the
importance stressed by Lord Woolf of not moving automatically from the
fact that a clause could result in greater recovery than the amount of the
actual loss to an assumption that without further justification the clause
must be penal in nature.23
[Emphasis added.]
The final and most recent case is Steria Ltd v Sigma Wireless Communications
Ltd. H.H. Judge Stephen Davies considered the cases mentioned above and
sought to avoid the use of any sort of binary test, stating that:
. . . the question is a broad and general question, and that in commercial
contracts the courts should exercise great caution before striking down a
clause as penal .24
[Emphasis added.]
23
Murray v Leisureplay [2005] EWCA Civ 963 at [114][118].

Steria Ltd v Sigma Wireless Communications Ltd [2007] EWHC 3454; [2008] B.L.R. 79; 118
Con. L.R. 177 TCC at [100].
24
Liquidated Damages
579
Part A conclusions
The approach of Arden L.J. is the most intrusive one, and is likely to be closely
scrutinised in subsequent cases. However, it is difficult to see how the test
established by Lord Dunedin in Dunlop has been fundamentally departed from.
It is submitted that Dunlop determined that liquidated damages clauses are a
genuine pre-estimate of loss, whereas penalty clauses are designed to deter the
other party from breaching the contract.
The real issues in the case law since Dunlop have been whether one needs to
focus on the genuineness of the pre-estimate of loss, or on whether the dominant
purpose of the sum inserted was to act as a deterrent; or if this test is simply
trumped by public policy that there is a very strong predisposition to uphold
contractual terms fixing the level of damages for breach in cases of commercial
contracts freely entered into between parties of comparable bargaining power.
Whilst some judicial comments are attractive for those seeking to argue that a
provision is a penalty, it is highly tempting to believe that the public policy,
or commercially justifiable reasons will always prevail. This is especially so
because the courts do not wish to take a detailed analysis (akin to that advocated
by Arden L.J.) of the compensatory model.
Those seeking to argue that a sum is a penalty can take encouragement from
Coleman J. in Lordsvale Finance Plc v Bank of Zambia, approved by Mance
L.J. in United International Pictures v Cine Bes Filmcilik ve Yapimcilik AS 25 :
. . . whether a provision is to be treated as a penalty is a matter of
construction to be resolved by asking whether at the time the contract
was entered into the predominant contractual function of the provision was
to deter a party from breaking the contract or to compensate the innocent
party for the breach. That the contractual function is deterrent rather than
compensatory can be deduced by comparing the amount that would be
payable on breach with the loss that might be sustained if the breach
occurred.26
However, in Murray v Leisureplay, Buxton L.J. says that there are two
alternatives, a deterrent penalty, or a genuine pre-estimate of loss, with no
middle ground. A provision will though be a genuine pre-estimate of loss if
the court cannot say with some confidence that the clause is indeed intended
as a deterrent. . .27 This approach supports the concept of a presumption of
enforceability.
In conclusion, it appears that there will be a good arguable challenge to a
specified sum stated to be liquidated damages where:
the payer can prove on the balance of probabilities that the stated sum
had the dominant purpose of acting as a deterrent; and
25
United International Pictures v Cine Bes Filmcilik ve Yapimcilik AS [2003] EWCA Civ 1669
CA.
26
27
Lordsvale Finance Plc v Bank of Zambia [1996] Q.B. 752; [1996] 3 W.L.R. 688 QBD at [762].
580

the payer can prove on the balance of probabilities that the sum was not a
genuine pre-estimate of loss, because there was a substantial discrepancy
between the stated sum and the actual claim for damages.
In all other cases, the policy is to uphold contracts freely entered into by parties
of comparable bargaining power (i.e. where there is little opportunity to argue
oppression28 ), which means that the damages will be or are highly likely to be
enforceable.29
B. Sum must be payable on breach of contract30

In many construction related agreements (for example, project finance and
development agreements), clauses often give one party an option of terminating
on the payment of an additional sum. Or they make express provision for the
payment of a specified sum on the occurrence of a specified event (where that
event does not involve a breach of contract by the payer).31
In property development, for example, it is usual for an agreement for lease
(between a property developer and prospective purchaser/tenant) to provide that
if a certain event occurs, then specified sums or rent-free periods are due from
the developer to the purchaser/tenant. A typical clause would read:
If the Developers Works have not achieved Practical Completion by [a
specified date] the rent commencement date shall be postponed by two
days for every day that Practical Completion is delayed.
28 Tomlinson J. in Indian Airlines Ltd v GIA International Ltd [2002] EWHC 2361 (Comm) at
[83], said: . . . to strike down this agreement made between two substantial parties . . .would
indeed be a blatant interference with freedom of contract, and, bearing in mind that the doctrine
is intended to provide relief against oppression, I cannot believe that there is any room for the
application of the doctrine here, where there may have been hard bargaining but, in my judgment,
nothing which comes even close to oppression. [Emphasis added.] Indian Airlines sought summary
judgment for the sum of $5,550,000 as liquidated damages and it was accepted that they had not
given any indication that they considered the daily liquidated damages figure inserted in the contract
represented a genuine estimate of possible loss. Evidence was also admitted to the Court that an
Indian Airlines representative had said that the penalty provision had to be $8,500 and that, if
GIA did not agree to that sum, discussions would be over and GIA would no longer have the deal.
Counsel for GIA also argued that the sum stipulated had not been estimated, reflected twice the
daily rental figure and was simply intended to put pressure on GIA to perform. GIA also argued that
the sum was oppressive because it did not diminish over time and it was open to Indian Airlines
to continue to hold GIA to its contract and decline to exercise the right to terminate, but continue
to recover the stipulated liquidated damages.
29 Since delivery of this article, the decision in Liberty Mercian Ltd v Dean & Dyball Construction
Ltd [2008] EWHC 2617 (TCC) was handed down by Coulson J. The judge commented that, The
courts have always been wary of allowing one party to a contract to avoid the consequences of a
liquidated damages provision freely entered into (at [13]) and that a mathematical approach to
liquidated damages should not be advocated. The Court considered cases where drafting of liquidated
damages clauses were unenforceable due to uncertainty and where the contractual machinery itself
prevented the proper operation of such clauses. However, the judge held that, construed as a whole,
the contract was enforceable and contained no penalties.
30
It should be noted that a clause may amount to a penalty even if it requires no payment, if
it requires a transfer of property (or shares) on breach of an obligation, as evidenced in Jobson v
Johnson [1989] 1 W.L.R. 1026 CA.
31 Such clauses are not common in pure construction contracts because there is usually an
express contractual obligation on the contractor to reach practical completion by a specified
date. It should also be noted that typically agreements for lease do not have provisions for pure
liquidated damages for delayed completion or provide for any extensions of time. Instead such (nonconstruction) agreements provide long-stop dates after which termination of the relevant agreement
is the remedy.
Liquidated Damages
581
In some agreements, the sum payable, or the rent-free period, may increase with
each specified event. For example, a typical clause would read:
If
(i) the Date of Practical Completion has not occurred by the [First
Target Date] the rent commencement date shall be postponed by
two days for every day that Practical Completion is delayed from
the [First Target Date] to the Date of Practical Completion and
(ii) the Date of Practical Completion has not occurred by the
[Second Target Date] the rent commencement date shall be
postponed by three days for every day that Practical Completion
is delayed from the [Second Target Date] to the Date of Practical
Completion and
(iii) the Date of Practical Completion has not occurred by the [Third
Target Date] the rent commencement date shall be postponed by
four days for every day that Practical Completion is delayed from
the [Third Target Date] to the Date of Practical Completion.
A developer, especially in the latter example, might be tempted to argue that
the provision of the rent-free periods is an unenforceable penalty and does
not represent a genuine pre-estimate of the tenants loss. The target dates may
be only days apart, and the developer may assert that graduating the payment
of rent-free days at such a steep incline is simply penal. The developer may
also argue that it is absurd that he or she is required to pay penal sums on
the occurrence of an event, whilst if the developer had breached a contractual
obligation, the rule against penalties would apply. A developer might also argue
that the rule against penalties should not apply to events for which he or she
has been allocated the risk and that can only arise due to the developers
defaulteven though the default may not be a breach of an express contractual
term.
There does not appear to be a case directly on the points discussed above. Is the
developer correct in asserting that the specified events which (in practice) can
only arise because of a default (although it is under no contractual obligation
to prevent such events) are sufficient, so that the rule against penalties would
apply? Alternatively, would the tenant be correct in asserting that the freely
agreed contract terms should be upheld, and even if the sums payable appear
to be penal, the fact that payment is triggered by the occurrence of an event
(as opposed to a breach of a contractual obligation) means that the rule against
penalties simply does not apply? In short, in the tenants view, the parties
freedom to contract should be upheld by the courts.
The correctness of the view that the rule against penalties has no application to
a clause which provides for the payment of an agreed sum on the happening of a
specified event other than a breach of contract has been affirmed by the House of
Lords in Export Credits Guarantee Department v Universal Oil Products Co.32
The facts of the case were that A agreed to build a refinery. Finance was
provided by B and guaranteed by C. A and C entered into an agreement under
32
Export Credits Guarantee [1983] 2 All E.R. 205.
582
which A undertook to reimburse C for any payments made by C to B. A

defaulted under the finance agreement with B, and consequently Cs guarantee
was called upon. When C sought reimbursement from A, A alleged that the
agreement was a penalty. The House of Lords disagreed and decided that the
sum of 39,571,001.54 payable by A was not a penalty because the clause
provided for payment of money upon the happening of a specified event rather
than a breach of contract.
Lord Roskill considered that their Lordships had finally and authoritatively
determined the question of whether the doctrine of penalties applied to
payments due on the occurrence of a specified event. It is noteworthy that
Lord Roskills judgment was based on an unreported case. He said:
. . . I have arrived at this conclusion in complete agreement with the
courts below and for the same reasons. . . But both courts below relied on
a virtually unreported decision of the Court of Appeal in Philip Bernstein
(Successors) Ltd v Lydiate Textiles Ltd [1962] CA. . .33
In Philip Bernstein v Lydiate Textiles,34 dealers had agreed with a finance
company that they would be paid commission to procure offers from hirers to
enter into hire purchase agreements with the finance company. They also agreed
that if the hirers defaulted under the agreements, they would pay the finance
company an amount equal to any unpaid monies due. Diplock L.J. said there
was no question of any breach of contractual obligations, but the defendants
were sued in respect of sums payable upon a specified eventuality. He said
it had been conceded that there was no case in which it had been held that a
payment to be made in a specified eventuality was a penalty, and he was not
prepared to extend the definition of penalty.
There are other cases that uphold the principle. In Alder v Moore,35 the defendant
professional footballer was insured against disablement. He was injured and
received a payment from the insurers. Under the terms of the policy, no
claim was to be paid unless Moore signed a declaration to the effect that he
would not play professional football in the future and that, in the event of
infringement, he would forfeit the monies paid. Moore signed a declaration
saying:
In consideration of the above payment I hereby declare and agree that I
will take no part as a playing member of any form of professional football
in the future and that in the event of infringement of this condition I will
be subject to a penalty of the amount stated above [500].36
The Court of Appeal (Devlin L.J. dissenting) held that no contractual obligation
was created by the words I agree and consequently the sum payable was
simply payable on the happening of an event not involving a breach of contract
and so was not capable of being a penalty.
33
Export Credits Guarantee [1983] 2 All E.R. 205 at [224].

Philip Bernstein (Successors) Ltd v Lydiate Textiles Ltd, Unreported June 26, 1962 CA.
35
Alder v Moore [1961] 2 Q.B. 57; [1961] 2 W.L.R. 220; [1990] 1 All ER 303 CA.
36 Alder v Moore [1961] 2 Q.B. 57 at 58.
34
Liquidated Damages
583
In another relevant case, Jervis v Harris,37 a lease contained a clause which

entitled the landlord to enter the property and carry out repairs, which the
tenant ought to have carried out in accordance with the covenants in the lease,
and then recover the cost of the repairs from the tenant. The Court of Appeal
held that the nature of the sums recoverable by the landlord was a debt, and
hence it was not a penalty. Millett L.J. stated:
The landlords claim sounds in debt not damages; and it is not a claim to
compensation for a breach of the tenants covenants to repair. . . The law
of contract draws a clear distinction between a claim for payment of a debt
and a claim for damages of breach of contract. . . a debt is a definite sum
of money fixed by the agreement of the parties as payable by one party. . .
on the occurrence of some specified event or condition.38
He concluded that:
But it is well settled that the event on which the sum alleged to be a penalty
becomes payable must be a breach of some other contractual obligation
owed by the obligor to the oblige. . . 39
He also reinforced the approaches of Lord Roskill in Export Credits Guarantee
and Lord Diplock in Philip Bernstein v Lydiate Textiles in not extending the
law by giving relief against penalties, stating that the approach taken by their
Lordships has:
. . . all the more force in a case. . . where the court is asked for the
first time to strike down a standard clause which has been familiar to
property lawyers for generations, which has been enforced on countless
occasions.40
Part B conclusions
From a review of the above cases, it would appear unlikely that a court of first
instance would be prepared to overrule Diplock L.J. (as he then was), Lord
Roskill and Millett L.J. (as he then was) in Alder v Moore 41 and extend the
doctrine of penalties to sums payable on the occurrence of specified events
other than on a breach of a contractual obligation.
In summary, it is clear that a sum of money (or other tangible benefit) payable
otherwise than on a breach of contract cannot be a penalty. This issue has forced
many to closely inspect documents which provide for the payment of pre-agreed
damages (or more properly defined, sums of money) but where a breach of
contract is not readily visible. Indeed, on the subject of development agreements
37 Jervis v Harris [1996] Ch. 195 CA. Interestingly this case overruled Swallow Securities Ltd v
Brand (1981) 260 E.G. 63 and in practice Jervis introduced certainty into the law and appeared
to be welcomed by landlords who were subsequently more willing to use the self help remedy
ordinarily available in such leases.
38 Jervis v Harris [1996] Ch. 195 at 202.
39 Jervis v Harris [1996] Ch. 195 at 206.
40
Jervis v Harris [1996] Ch. 195 at 206207.
41 Alder v Moore [1961] 2 Q.B. 57.
584
and agreements for lease, which ordinarily contain event based rent-free
period provisions, there is now an increasing tendency to have liquidated and
ascertained damages (LADs) linked to the developers obligation to complete
the lease by a certain specified date. This does, of course, not preclude the use
of a long-stop date that would allow termination of the agreement for lease.
C. Liquidated Damages as an exclusive remedy

Imagine the following scenario: An Engineer-Procure-Construct (EPC) contractor has threatened to go slow with construction work in respect of the ethylene
facilities. A question arises about what immediate remedies (that is, before completion) may be available to the client under the EPC contract. The companys
in-house counsel wants to know:
Do the delay damages provisions under the contract (the delay damages
provisions) prevent the client from enforcing any rights for breach
of these work performance obligations? In other words, are the delay
damages an exhaustive remedy?
If the answer to the above is no, does the breach of a due diligence
clause by the contractor allow the client to claim damages/injunctive
relief notwithstanding the delay damages provisions?
What does performing work diligently mean?
In general, the nature and effect of a liquidated damages clause depends upon
its construction. It has been suggested by commentators42 that, in building
contracts, a clause providing for payment by the contractor of liquidated
damages for delay will normally operate as a limitation of the contractors
liability. This is based on the Court of Appeal decision in Temloc v Errill
Properties, where Nourse L.J. expressed the view that it was:
. . . clear, both as a matter of construction and as one of common sense,
that if [the liquidated damages clause] is incorporated in the contract. . .
then that constitutes an exhaustive agreement as to the damages which are
or are not to be payable by the contractor in the event of his failure to
complete the works on time.43
It should be noted, that there is some doubt as to whether Temloc should
be treated as definitive authority where similar wording is used. The case
seems extreme on its facts and conclusions. According to Hudsons Building
and Engineering Contracts, the wording at best seems ambiguous, given the
42 Keating on Construction Contracts, edited by the Hon Sir Vivian Ramsey and Stephen Furst
Q.C., 8th edn (Sweet & Maxwell, 2006), para.9-06.
43 Temloc Ltd v Errill Properties Ltd 39 B.L.R. 30 CA at 39. By cl.24.2.1 of the 1980 Joint
Contracts Tribunal (JCT) form of contract, the owner, upon a certificate of failure to complete under
cl.24.1, was entitled to a sum calculated at the rate stated in the Appendix as liquidated damages
from that date to practical completion. The rate under cl.24.2 was inserted in the Appendix as
nil, and the period for the payment was left blank. The owner claimed that the word meant
that he was entitled to damages at large for delay in completion, from either the contract date or
reasonable date. The Court of Appeal held that the insertion of nill in the Appendix was an
exemption from the payment of damages for all delay in completion.
Liquidated Damages
585
position of parties faced with a complicated standard form and desiring merely
to avoid a fixed liability in all situations.44
More recently, two decisions (both of Ramsey J.) have added further weight
to this. In Chattan Developments Ltd v Reigill Civil Engineering Contractors
Ltd, an appeal under s.69 of the Arbitration Act, the judge construed an oral
agreement and concluded that:
. . . when there is a valid and enforceable liquidated and ascertained damages clause within an agreement, those damages are the sole remedy for
the particular breach to which they relate, commonly delay in completion.
Unliquidated damages are not recoverable because the parties agreement
of liquidated damages replaces the remedy which would otherwise be available for breach. As can be seen from Temloc, the question of whether unliquidated damages could be recovered was a matter of the interpretation of
the agreement from which it was possible to find a clear intention to exclude
that remedy. In the case of a written agreement, that clear intention can be
usually derived by construing the terms of the written agreement as a whole.
For example, it was not necessary in Temloc for there to be an express
exclusion clause to preclude the remedy of unliquidated damages.45
However, Ramsey J. based his decision on the interpretation of an oral
agreement and on witness evidence.46 Counsel had argued that there was a
written agreement between the parties and that a right to unliquidated damages
under cl.23 of the Joint Contracts Tribunal (JCT) contract existed because of
Lord Diplocks comments in Gilbert Ash (Northern) Ltd v Modern Engineering
(Bristol) Ltd :
But in construing such a contract one starts with the presumption that
neither party intends to abandon any remedies for its breach arising by
operation of law, and clear express words must be used in order to rebut
this presumption.47
Counsel appeared to be fortified in that view, because the arbitrator appeared
to accept that position too. Ramsey J. said:
Mr Edwards points out that in Reigills letter of 11 July 2002 to Chattan
no mention is made of unliquidated damages. I would concur that the
position could have been put beyond argument if that letter had expressly
stated that unliquidated were also excluded. However, I do not accept that
because no statement to that effect was included, it is fatal to Reigills case.
As has been argued for Reigill, the letter was intended to record the terms
44
Hudsons Building and Engineering Contracts, edited by Duncan Wallace Q.C., 11th edn (Sweet
& Maxwell, 1995), para.10.023.
45 Chattan Developments Ltd v Reigill Civil Engineering Contractors Ltd [2007] EWHC 305
(TCC) at [31].
46 Chattan Developments [2007] EWHC 305 (TCC) at [28], where Ramsey J. states. It is clear
that the agreement which was formed in this case was made orally at the meeting on 10 July 2002
and that whilst the letter of 11 July 2002 might be evidence of the terms of that agreement, it does
not stand as a written agreement. In this case, the parties did not subsequently enter into a written
agreement or produce a copy of the JCT Standard Form to which they worked.
47 Gilbert Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] A.C. 689; [1973] 3
W.L.R. 421; [1973] 3 All E.R. 195 HL at 717.
586

of the Contract but that is not the contract itself. I would also observe the
fact of there being no mention in the letter of 11 July 2002 of unliquidated
damages is consistent with Mr Bossoms evidence about his view of it
being necessary in the circumstances of this case to write them in.48
However, Ramsey J. appears to have cut off this line of challenge stating:
In the case of a written agreement, that clear intention [to exclude the
unliquidated damages remedy] can usually be derived by construing the
terms of the written agreement as a whole.49
The second case is Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese
GmbH.50 Biffa sought to argue that a valid and enforceable liquidated damages
clause was an exclusive remedy for breach only of the obligation to complete
on time. It was argued that it was not applicable to breach of other obligations,
which whilst causing delay were not obligations dealing with the need to
complete on time. It was argued that such breaches allow an entitlement to
unliquidated damages. Ramsey J. held that:
. . . the general position [is] that a liquidated damages clause in a contract
covers all the damages for non-completion or constitutes an exhaustive
agreement as to the damages which are or are not to be payable by the
contractor in the event to the failure to complete the works on time. See
Temloc v Errill.51
Ramsey J. cited support from H.H. Judge Gilliland Q.C. in Piggot Foundations
Ltd v Shepherd Construction Ltd and H.H. Judge Fox-Andrews Q.C. in Surrey
Heath BC v Lovell Construction Ltd.52
The irresistible conclusion is that a valid enforceable liquidated delay damages
clause presents an exclusive or exhaustive remedy for delay, regardless of what
breach of what obligation has caused (partly or wholly) the delay. This complete remedy analysis is summarised in Keating on Construction Contracts:
It is suggested that the solution is primarily a question of the construction
of the contract in question. If, as in most (if not all) cases, the clause is
clearly expressed to be or, as a matter of proper construction appears to
48
Chattan Developments [2007] EWHC 305 (TCC) at [14].

Chattan Developments [2007] EWHC 305 (TCC) at [31].
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWHC 6 (TCC). This
went to the Court of Appeal but it should be noted that it is only the part of the judgment dealing
with vicarious liability that was reversed on appeal.
51 Biffa Waste [2008] EWHC 6 (TCC) at [38] to [40].
52 Piggot Foundations Ltd v Shepherd Construction Ltd [1993] 67 B.L.R. 48 and Surrey Heath
BC v Lovell Construction Ltd (1988) 42 B.L.R. 25 QBD. In the former case H.H. Judge Gilliland
Q.C. held (at 68F) that a valid enforceable liquidated damages clause prevents the defendant from
seeking to avoid the overall limitation of damages to 40,000 by claiming as a head of general
damages for the breach of any other provisions or obligation under the contract such damages
which have resulted from the failure of the plaintiff to complete the piling work within the period of
10 weeks. In the latter case, the judge found that the liquidated damages clause was an exhaustive
remedy for delay where a building had been damaged by fire. Similar reasoning was used by H.H.
Judge Coulson Q.C. (as he then was) in Decoma UK Ltd (formerly Conix UK Ltd) v Haden Drysys
International Ltd [2005] EWHC 2948 (TCC), where he stated that liquidated damages were an
exclusive remedy for all claims arising out of Decomas inability to use, and make profit out of,
the paint spraying system due to Hadens delay in completing it to the required standard.
49
50
Liquidated Damages
587
be, a complete remedy for delayed completion then it matters not why the
contractor failed to complete by the due date. . . The fact that the delay is
due to a breach of contract by the contractor as opposed to merely going
slow, cannot affect the nature or quality of the loss which the liquidated
damages is intended to compensate. In reality, in such situations, there are
two breaches: the carrying out of the defective work. . . and the failure
to complete by the due date. Neither the employer nor the contractor can
avoid liquidated damages by simply relying on the first breach.53
This would lead to the conclusion that the client in the above scenario has
no remedy (damages or injunction) for the failure to proceed diligently. This
is because all obligations that bite on delay are covered by the liquidated
damages clause.
But can obligations that may cause, but have not yet caused, delay to completion,
i.e. failure to proceed with diligence, also be covered by the exclusive remedy
of liquidated damages?
It is not beyond doubt that injunctive relief / damages are not recoverable in such
circumstances. It follows that unliquidated damages will only be permissible if
the obligations (that are breached) are unrelated to delay to completion. This
point was addressed by H.H. Judge Coulson Q.C. (as he then was) in Decoma
UK Ltd (formerly Conix UK Ltd) v Haden Drysys International Ltd :
. . . in addition to claims for liquidated damages for delay, Articles 3.1
and 3.2 were available to Decoma to found claims, if any, for non-delay
breaches of contract. . .54
The emphasis therefore appears to be on breaches that do cause delay to
completion. But how does this analysis sit with the Scottish case of Scottish
Coal Company Ltd v Kier Construction Ltd ?55 In that case, Lady Smith was
asked to consider a contract that provided liquidated damages both for:
failure to complete extraction of all coal by the completion date; and
failure to meet periodic minimum productivity targets (in terms of
Gigajoules).56
53
Keating on Construction Contracts, 2006, para.9-006.

Decoma UK Ltd (formerly Conix UK Ltd) v Haden Drysys International Ltd [2005] EWHC
2948 (TCC) at [61].
55
Scottish Coal Company Ltd v Kier Construction Ltd [2005] CSOH 74 Court of Session.
56 The exact clauses were: 7.9.1 In the event that the Contractor shall fail to execute and complete
the Works by the Completion Date or such extended period as may be determined under Clause
5 the Employer may deduct from any payment or payments due or falling due to the Contractor
under Clause 6 as liquidated damages and not as a penalty a sum of 5,000 per day for every
day which shall elapse between after the Completion Date or such extended period as may be
determined under Clause 5 and the date on which the Works are completed to the satisfaction of the
Site Manager. 7.9.2 In addition and notwithstanding the provisions of Clause 7.9.1 if the Contractor
fails to produce the minimum cumulative Gjs of Coal specified in Schedule Part 9 for any three
consecutive Accounting Periods the Employer may deduct from payment any payment or payments
falling due to the Contractor under Clause 6 a sum by way of liquidated damages and not as a
penalty calculated by multiplying the difference between the cumulative Gj of Coal produced and
the minimum cumulative Gj specified in Schedule Part 9 for the last of such Accounting Period by
0.04p per Gj. The Employer may deduct such damages on each and every occasion when default
occurs.
54
588
The contract as construed contained an obligation that all of the coal would be
extracted. The contractor was in breach but argued (in the last resort) that the
liquidated damages clause was applicable and that the employer had no right
to unliquidated damages for failure to extract all the coal. A deeper analysis
requires us to consider whether the contractors failure to extract all the coal did
not lead to delay in completion? Further, does that obligation not have a direct
link to delay to completion? It is submitted that there does appear to be a direct
linkbut the Court held that the contract contained an obligation to complete all
extraction by a certain date, but did not contain a liquidated damage clause for
that breach. This meant that the employer could recover unliquidated damages
for failure to extract all the coal.
The judge was keen to take a divisible approach to obligations and liquidated
damages:
I turn then to the central issue between the parties, namely that of whether
or not the pursuers are only entitled to claim liquidated damages. The key
to resolving this issue lies in, firstly, identifying the event in respect of
which the pursuers claim that they are entitled to recover damages and,
secondly, the event or events for which the contract makes provision by
way of agreement to liquidated damages. To adopt the approach of Lord
Wilberforce in Suisse Atlantique Societe at page 435: First it is necessary
to decide what is the legal nature of the. . ... clause: is it a clause by which
damages for breach of contract are agreed in advance. . ...? Following that
approach involves determining what breach or breaches are covered by the
clause, the problem for the plaintiffs in Suisse Atlantique Societe having
been that the breach founded on was, on a proper analysis, a failure which
was covered by the demurrage clause in the charterparty.57
Lady Smith continued:
I am, in particular, satisfied that it is not a matter of the pursuers complaint
being that completion was delayed to a date beyond the completion date
in March 2003 nor is it a matter of the complaint being that they were
late in meeting the targets set out in the delivery schedule although that is
something which, no doubt, may also have arisen. The pursuers complaint
is a separate and fundamental one namely that the defenders did not
complete the contract by fulfilling their obligation to extract all coal other
than any that they were instructed by the site manager not to extract.58
Part C conclusions
Does the above mean that a complaint about the failure to proceed diligently
is a fundamental one and separate to delay? It is submitted that where it is
possible to recognise and distinguish any cost and expense that results from
delay in completion of a project from any cost and expense which is referable
to some other breach, these latter damages, even though they could be related to
57
58
Scottish Coal v Kier [2005] CSOH 74 at [30].

Scottish Coal v Kier [2005] CSOH 74 at [31].
Liquidated Damages
589
the delaying event, may be recoverable notwithstanding the exhaustive nature

of the liquidated damages provisions.
This is supported by the obiter remarks of Nourse L.J. in Temloc, where he
expressed the view that the damages payable in respect of late completion of
the works are one head of the general damages which may be recoverable by
an employer for the contractors breach of a building contract.59 The Building
Law Reports Commentary on Temloc suggests that this statement means that
the employer might still be able to recover as unliquidated damages losses
attributable to causes which are independent of but related to the failure to
complete.60
Indeed, the late Ian Duncan Wallace expressed the view that a party can claim
damages for pre-completion losses (even if the claim is time related) where
the contractor breaches its ongoing duties under the contract, notwithstanding
the Temloc case and the existence of a liquidated damages clause for delay. He
argues in Hudsons Building and Engineering Contracts that express liquidated
damages clauses for delay in completion are targeted at one narrow aspect of
the damage which the owner may incurnamely damage resulting exclusively
from delay in completion.61 In other words, liquidated damages clauses are
aimed only at damage which results from a delayed resumption of possession
by the owner.
According to Hudsons Building and Engineering Contracts, earlier intermediate delays by the contractor may cause immediate and serious damage to the
owner which is not covered by the liquidated damages clause. This will usually
take the form of liabilities of the owner to third parties. Examples are other contractors, or subcontractors, or adjoining owners, or public utilities, with whose
requirements the work may have had to be coordinated by the owner, or the
owners advisers, and to whom there may be commitments. Such immediate
damages fall outside the liquidated damages clause and are claimable immediately. A number of cases are cited62 in Hudsons Building and Engineering
Contracts to support the view that damages resulting from earlier delays do not
fall within the liquidated damages clause.
When construing a liquidated damages clause, there is also the possibility
of drawing a distinction between delay and disruption related costs.63
The concept of delay is time-related, whereas the concept of disruption is
organisation / productivity-related. In relation to the latter, it signifies that the
progress of the works has become disorganised and inefficient. Whilst related
to delay, the existence of disruption is not dependent on time or delay. Indeed,
59
Temloc v Errill 39 B.L.R. 30 at 39.

Temloc v Errill 39 B.L.R. 30 at 33. Surrey Heath BCl (1988) 42 B.L.R. 25 appears to be a
case which supports this view. In that case, the judge found that whilst the liquidated damages
clause in question exhaustively covered pure delay costs, the council was nevertheless entitled
to recover other losses which were not related to delay costs (e.g. damage to certain items of
property already installed in the new building and not covered by the contractual insurance, and
extra professional costs incurred in the rebuilding work, provided they too were not covered by the
contractual insurance, were not due to late completion and were not therefore recoverable).
61 Hudsons Building and Engineering Contracts, Vol.2, 1995, para.9.032.
62 AKT Reidar v Arcos Ltd [1927] 1 K.B. 352 CA; Chanthall Investments Ltd v FG Minter Ltd
1976 S.C. 73 Court of Session; Mathind Ltd v E Turner & Sons Ltd (1989) 5 Const. L.J. 273 CA.
63 This argument was used in Pillar PG Ltd v D J Higgins Construction Ltd (1986) 10 Con. L.R.
46 CA. The judgment of the Court of Appeal was short and its reasoning unclear. On the facts, it
held that such a construction was not possible.
60
590
in a paper on the ascertainment of damages, Jonathan Hosie suggests that, if

one is able to distinguish and dissect those losses due to disruption from those
related to delay, it is possible and logical to construct a case for the recovery of
such losses in addition to liquidated damages for the delay.64 However, caution
is advocated primarily because such a result would be rare in cases where
the claims for delay and disruption are intertwined and not separately readily
distinguishable.
Further, Hudsons Building and Engineering Contracts takes the view that,
where there is an express liquidated damages clause as well as an express
due diligence term, or where there are express intermediate completion dates
stipulated in the contract which the contractor has failed to meet, intermediate
delays by the contractor prior to completion will of course be a breach of
contract for which such damages of the owner will be recoverable.65
Hudsons Building and Engineering Contracts cites the case of Greater London
Council v Cleveland Bridge & Engineering Co Ltd to support this.66 Although
the contractor met all key dates, the owners argued that the contractors had
unnecessarily prolonged certain later and minor processes at the end of the
manufacturing period so as to increase production costs. There was a liquidated
damages clause, but only for late completion of the whole of the works and not
for the intermediate key dates. There was no express due diligence clause.
The issue that arose before the Court was whether a due diligence obligation
should be implied into the contract. Although both the Court at first instance
and the Court of Appeal concluded that it was not possible to imply a due
diligence clause in the form suggested by the owners on the grounds that it was
abstract and not related to the objective,67 they appeared to accept that the
claim would have succeeded if there was an express due diligence clause. At
first instance, Staughton J. expressly said that:
If there had been a term as to due diligence I consider that it would have
been, when spelt out in full, an obligation on the contractors to execute
the work with such diligence and expedition as was reasonably required in
order to meet the key dates.68
64
Jonathan Hosie, The Ascertainment of Damages for Delay in Construction Contracts:
Liquidated and Unliquidated Damages (1994) 10 Const. L.J. 214.
65 Hudsons Building and Engineering Contracts, 1995, para.9.033.
66 Greater London Council v Cleveland Bridge & Engineering Co Ltd (1986) 34 B.L.R. 50; 8
Con. L.R. 30 CA.
67 Greater London Council v Cleveland Bridge (1986) 34 B.L.R. 50 per Parker L.J. at 77. Both
Staughton J. and Parker L.J. held that a term for due diligence cannot be defined except in terms
of any contractual or extended dates for completion.
68 Greater London Council v Cleveland Bridge & Engineering Co Ltd [1984] C.I.L.L. 106.
Dispute Resolution in
NEC3User Unfriendly?
By Ben Beaumont*
Alternative dispute resolution; Engineering and Construction Contract
Introduction
In the NEC3 Engineering and Construction Contract, there are two alternative
methods for dispute resolution. Option W1 is the dispute resolution procedure,
as the heading says, to be used unless the UK Housing Grants, Construction
and Regeneration Act 1996 applies. Option W2 is intended by the contract to
apply to all the remaining situations where the Housing Grants, Construction
and Regeneration Act 1996 applies.
The guidance notes do not appear to have made any provision for the situation
where the choice of options has not been made within the contract. Should a
dispute arise, then it is feasible for the parties to agree upon the option. However,
should the parties be unable to agree, there appears to be no reason why the
disputing party should not seek an appointment from the adjudicator nominating
body (ANB). That option, of course, requires the employer to have stated in
the contract data the name of the ANB. At the present time, there appear to
be more than 17 of these bodies, and it could be said to be somewhat difficult
for an employer to decide which option as to nominating body to take. In any
event, assuming that there is an identified nominating body and an appointment
is made, then the first task before the adjudicator would be to decide under
which or any of the options he or she should proceed.
H.H. Judge Humphrey LLoyd Q.C., in an article published in International
Construction Law Review in October 2008, appears to be of the opinion that
the options set out in NEC3 are the only ones available. Brian Eggleston,
in the second edition of The NEC3 Engineering and Construction Contract,
a Commentary, does not appear to agree. However, his area of disagreement
appears to focus upon whether, in the absence of an employer making a decision
as to which option, there might be a dispute as to which option is to be chosen
rather than raising the possibility of a third option.
There is a further possibility. The employer might use an ad hoc process to
seek a nomination and the resulting appointment to be governed by a procedure
which falls under neither of the two options.
Clarendon Chambers, Chairman FICACIC, Barrister, FRICS, FCIArb, chartered arbitrator,
mediator and Junior Vice Chairman Adjudication Society.
591
592
It appears to be accepted that option W1 may apply in the United Kingdom,

whereas option W2 does apply in the United Kingdom due to the fact that it
is to be used where the United Kingdom Housing Grants, Construction and
Regeneration Act 1996 applies.
For option W1 there is an adjudication table. That table appears to describe
the methodology for referring one of four types of dispute to decide and the
procedures for the notification to the other parties. Under cl.W1.1, a dispute
arising under, or in connection with, this contract is referred to and decided
by the adjudicator. A dispute arising under or in connection with the contract
provides a wide scope of jurisdiction for the adjudicator. It can, without doubt,
raise a question for the adjudicator whether there is indeed a contract. However,
this can only be impliedly encompassed within the third category of dispute.
W1.2 The adjudicator
W1.2 (1) Appointment and nomination

W1.2 (1) directs the parties to appoint the adjudicator under the NEC
adjudicators contract current at the starting date. The English is confusing.
It is intended that the parties shall appoint or nominate the adjudicator in the
contract data. The adjudicators contract forms part of the contract data. The
appointment is not made under the adjudicators contract. The appointment
is made and contained within the adjudicators contract. It does regularly occur
that parties do not make that appointment or nomination.
W1.2 (2) Impartiality and independence

W1.2 (2) requires the adjudicator to act impartially and decide the dispute
as an independent adjudicator and not as an arbitrator. The requirement to
act impartially is usual and necessary. However, the requirement to decide
the dispute as an independent adjudicator adds nothing to the requirement
to act impartially. Nor is it necessary to state that the adjudicator acts as an
adjudicator and not as an arbitrator. The powers of an adjudicator are defined
by the Scheme for Construction Contracts (England and Wales) Regulations
1998 (the Scheme).1 Where they are not defined by the Scheme then, unless
rules of procedure had been agreed, there are no statutory rules of procedure.
The only factors which seemed to concern the courts when reviewing decisions
of adjudicators are that they must act fairly and within the rules of natural justice
on the one hand, and on the other that they must make their decisions within
the jurisdiction given to them by the parties and/ or the contract.
W1.2 (3) No named adjudicator

W 1.2 (3) sets out the procedure available to the parties, where the adjudicator
is not identified in the contract or if the adjudicator resigns or is unable to act:
1
Scheme for Construction Contracts (England and Wales) Regulations 1998 ss.1219.
593
Where the adjudicator is not identified in the contract data or if the

adjudicator resigns or is unable to act, the parties choose a new
adjudicator jointly.
If the parties have not chosen an adjudicator (jointly), either party may
ask the ANB to choose one.
The ANB chooses an adjudicator within four days of the request. The chosen
adjudicator becomes the adjudicator.
The concept of the adjudicator resigning is not readily found in other forms
of dispute resolution. Possibly this explicit indication is a move to encourage
greater confidence on the part of adjudicators to admit when the subject matter
upon which they are required to make a decision is outside their normal
knowledge. If so, this is to be applauded. There do not appear to be within
the dispute resolution option materials any indication as to possible reasons for
resignation. Generally adjudicators, where appointed, should not resign, unless
they are ill or have too much work or have identified a conflict of interest.
The other area available for resignation is, of course, where the adjudicator
does not have the required knowledge to determine the dispute. However, in
all fairness, it must be said that, where initial information is sparse, it may not
be until the dispute documentation is being collated for determination that the
adjudicator may realise that their knowledge is not sufficient. At that time the
adjudicator has two options. The preferred option is to inform the parties and
indicate that an assessor is needed to supply the knowledge which is lacking.
The additional cost will be borne by the parties. Otherwise, the adjudicator
should simply resign. The adjudicator should inform the parties that they do not
have sufficient knowledge to decide all the issues arising from the dispute.
It is somewhat difficult to determine where the difference lies between an act
of resignation and an inability to act. It appears that the two concepts are very
similar. If an adjudicator is ill or overbooked then it is a matter of inability to
act.
W1.2 (3) Invitation to an ANB to appoint an adjudicator

Where the parties have not chosen an adjudicator, either party may invite the
ANB to choose one. There is no time limit specified for the invitation to the
ANB to make its choice. However, once one party has decided that there is
a dispute and that party realises that an adjudicator is not identified within
the contract data, then it is incumbent upon that party to make the invitation,
forthwith. The dispute cannot be notified until an adjudicator is in existence.
Where notification and an awareness are linked, as shall be seen subsequently
in the disputes relating to actions and inactions of the project manager, then
a failure to have an adjudicator in place, within the period after which the
contractor becomes aware of the action or inaction, could prevent the contractor
from seeking the resolution of its dispute under those headings.
W1.2 (3) Nomination by an ANB

The ANB chooses an adjudicator within four days of the request. There is
no direction to the nominating body to inform the parties of the choice. It is
594
implicit. However, any revision of these rules should insert a simple direction
that the nominating body shall inform the parties immediately of the identity
of its choice. The chosen adjudicator becomes the adjudicator. That is selfexplanatory.
W1.2 (4) Powers of replacement adjudicator

W1.2 (4) deals with the powers of the arbitrator, especially the powers of a
replacement arbitrator. This clause is only relevant to a situation where there
has been an adjudicator, who has resigned or been unable to continue. In those
situations, the clause states:
A replacement adjudicator has the power to decide a dispute referred to
his predecessor, but not decided at the time when the predecessor resigned
or became unable to act. He deals with an undecided dispute as if it had
been referred to him on the date he was appointed.
Whilst the date is readily applied to an act of resignation, it is far more
difficult to decide upon a date when, at a certain point in time, an adjudicator
became unable to act. This inability to act and a need for determining a
date will not arise if the adjudicator acts proactively and informs the parties
of their situation. However, what is the situation of the parties within these
time limits, should the adjudicator merely be silent? These options have been
created and envisage a situation where the adjudicator does not give their
decision within the period of four weeks designated for the decision. In
that event, the adjudicator is deemed to have resigned. However, there does
not appear to be any interim procedure to enable the parties to determine
by means of a deeming provision as to inability to act. There must be a
procedure structured to enable the parties to demand of the adjudicator that
a response be given as to whether they are able to act or not. Coupled
with that demand should be a deeming provision that if the response has
not been received within three days then, an adjudicator will be deemed
to have resigned. At the present time, there is nothing of that nature in
place.
W1.2 (5) Adjudicators immunity

W1.2 (5) ensures that:
The adjudicator and his employees and agents are not liable to the parties
for any action or failure to take action in an adjudication, unless the action
or failure to take action was in bad faith.
This is a further example of poor English. This is a reasonable clause in concept.
However, it excludes the nominating body where applicable. The clause should
be drafted as follows:
The Adjudicator Nominating Body, adjudicator, his employees and agents
will not be liable to the parties for any action or inaction in an adjudication
unless this action or inaction was made in bad faith.
595
W1.3 (1) Adjudication table

In the adjudication table, the disputes arise under four headings:
disputes about an action of the project manager or supervisor;
disputes about an inaction of the project manager or supervisor;
disputes, which appears to be all-encompassing, on any other matter;
and
disputes arising out of a quotation for a compensation event, where that
quotation is treated as having been accepted.
W1.3 (1) Dispute as to an action

As to the first area of dispute, the action of the project manager or supervisor, the
contractor is the party who may, presumably, refer the dispute to the adjudicator.
The table requires that a reference be made between two and four weeks after the
contractors notification of the dispute to the employer and the project manager,
the notification itself being made not more than four weeks after the contractor
becomes aware of the action. This concept of awareness occurs in two out of
four areas of dispute. There is no express provision in the adjudication table
for the situation where any reasonable contractor would have become aware of
the action, but this particular contractor did not apparently become aware of the
action.
Therefore, there does not seem to be scope given to the adjudicator to hear
a dispute between the parties as to when the notification occurred. This is an
important omission as references to adjudication must be made in a timely
manner. Should the reference be made after an unreasonably long period after
the action there is no provision for the adjudicator to decide that any reasonable
contractor would have become aware of the action some time before this
particular contractor stated that they became aware. In my opinion, there is no
option given to the adjudicator to imply such reasonability into their jurisdiction
should the matter be referred to them.
There is a requirement that the contractor must wait until the 15th day after the
notification of the dispute before a reference can be made. Presumably, this delay
is to allow or encourage the parties to attempt to settle the dispute. As timing
is crucial and a failure to adhere to the time limits can prevent a contractor, or
where applicable an employer, from relying on or having its dispute decided by
adjudication at all, there is need for very effective contract management as to
any dispute.
W1 Referral information
In W1.3 (3), the party referring the dispute to the adjudicator includes with
his referral information to be considered by the adjudicator. This is strangely
worded and it is suggested that this means the party referring the dispute to the
adjudicator includes, with the partys referral notice, such information as the
party wishes to be considered by the adjudicator.
596
W1.3 (3) then continues that: Any more information from a party to be
considered by the adjudicator is provided within four weeks of the referral.
For the avoidance of doubt, this is clearly an opportunity for the referring party
to provide all of its information within the period of four weeks following the
referral. A more effective instruction might be: Any additional information,
which a referring party wishes to be considered in the adjudication, must be
provided within four weeks of the referral. This instruction must also be read
as to be applicable to the other party in the adjudication although the clause
is silent on the matter.
Thus, it appears that the other party has four weeks to consider what additional
or opposing information it shall provide to the adjudicator. It can also be said
that this instruction as to further information is not clear and should be redrafted
so as to include the clear option that the information may be provided by both
parties.
W1. Information and extension of time

Finally, W1.3 (3) permits the period of four weeks to be extended, where
the adjudicator and the parties agree. The situation where one party and the
adjudicator agree as to the extension and the remaining party refuses to agree is
a likely scenario. In that circumstance it would be quite wrong for the extension
to be granted. It is unlikely that an adjudicator would refuse an application for
an extension, where both parties were agreed. However, there will be situations
where the parties agree but the adjudicator, for reasons unbeknown to anyone,
may refuse to agree to the extension. It is suggested that the parties might
consider having an overriding power, should they so agree, to extend the period
as the onus is not necessarily on the adjudicator to ensure that the time limits
are met.
Although the adjudication table does not state, in terms, that the notification
must be made in writing, it would be extremely unprofessional for any user of
the NEC 3 contract, unless specifically permitted, to make any communication
arising under or in connection with the contract orally. Indeed, cl.13.1 addresses
communications. A notification must be a communication and so must be given
in a form which can be read, copied and recorded. This clause should be
expressly linked to the dispute resolution provisions.
The adjudication table also makes clear that the notification, described above,
must be made not more than four weeks after the contractor becomes aware of
the action. This issue as to awareness has been mentioned earlier.
W1.3 (1) Dispute as to an inaction

The adjudication table also permits a dispute to be raised, where no action has
been taken. In the adjudication table the procedure for referring the dispute
to adjudication is identical to that which applies where the dispute concerns
an action of the project manager or supervisor. The initial notification must
be made not more than four weeks after the contractor becomes aware of the
lack of action or inaction. It is suggested that the same concerns raised above,
as to when a reasonable contractor would have become aware that the action
597
was affecting the contract, in the contractors view, are equally pertinent to
this situation. Here also there does not appear to be any option given to the
adjudicator to hear submissions as to whether the notification was made more
than four weeks after a time when any reasonable contractor would have become
aware of the implications of the inaction.
It should be noted that should the employer be concerned as to the effects
or results of an action or inaction of their project manager or supervisor,
there is no option for the employer to refer the matter to the adjudicator.
Presumably, for the very simple reason that should a project manager or
supervisor put themselves in such a position, it would jeopardise the relationship
between themselves and the employer. However, there are situations where,
project managers and/or supervisors have, through their negligent action or
inaction, prejudiced the effective progress of the contract. Thus, the fact that
NEC3 does not apparently permit an employer to refer such a dispute to an
adjudicator appears to prevent the employer from seeking compensation in
another way.
W1.3 (1) Dispute as to any other matter

The next element concerning disputes is under the heading of any other matter.
It makes clear that either party can refer such disputes to the adjudicator.
However, the time period is more restricted. The matter must be referred to
the adjudicator between two and four weeks after the notification of the dispute
to the other party and the project manager. Thus, the awareness criteria set
out in the procedure relevant to actions or inactions of the project manager or
supervisor has been removed. No explanation has been given for this omission.
On first examination, it appears that a whole range of disputes can be referred
to the adjudicator at any time after the notifying party becomes aware of the
dispute. This appears to make nonsense of the attempt of the NEC3 to impose
a fairly tight time structure to the adjudication process.
W1.3 (1) Dispute as to a quotation for a compensation event

treated as accepted
A final element of disputes refers to disputes concerning a quotation for a
compensation event, which is treated as having been accepted. The adjudication
table sets out when the dispute may be referred to adjudication as being between
two and four weeks after the project managers notification of the dispute to
the employer and the contractor, the notification being made not more than four
weeks after the quotation was treated as accepted.
This preamble or guidance does not appear to give any opportunity for the
employer, of its own volition, to notify the contractor and the project manager
that the employer does not agree with a quotation, which is treated as having
been accepted. It could occur that the project manager has treated the quotation
as accepted in good faith. It appears that the employer is prevented from taking
any action to challenge that quotation. The project manager is unlikely to refer
his own mistake to the employer. This is in spite of the fact that the employer
is the party who may refer the matter to the adjudicator under the contract. It is
not clear why this particular situation has been highlighted in the adjudication
598
table. It could be asked why the project manager should notify the employer
of their own error, irresponsibility and incompetence in accepting a quotation
which should never been accepted?
W1.3 (2) Time limits

W1.3 (2) sets out that the times for notifying and referring dispute may be
extended by the project manager if the contractor and the project manager agree
to the extension before the notice or referral is due. This qualification to the
restrictive element of the time limits appears to refer only to disputes concerning
actions or inactions of the project manager or supervisor and disputes as to any
other matter.
It appears that in these restricted circumstances a contractor must approach the
project manager, not the supervisor, and indicate that there is a dispute and at
the same time state, in terms, that they apply for an extension of time, in order
to serve the notification. There might be very good reasons for such a request.
It could well be that until the element concerned is completed, the precise effect
it would have upon the contractor will not be known. It is suggested that it will
be more applicable to an action than an inaction. It might be that the effect of
the action will not be fully appreciated negatively or positively until more than
four weeks has expired. It may be difficult to discern a referable dispute at this
stage.
W1.3 (2) Time limits and notification

To return to W1.3 (2), the project manager notifies the extension that has
been agreed to the contractor. The English here is unfortunate. Presumably, it
should read that the project manager notifies the employer that the extension
has been agreed with the contractor. On the other hand, in another reading of
this strange sentence, it could be required that the project manager confirms to
the contractor that an extension of time has been agreed.
If a disputed matter is not notified and referred within the time set out in
this contract, neither party may subsequently refer it to the adjudicator or to
a tribunal. Again, the English requires some modification. What the sentence
should be saying, it is suggested, is that if a disputed matter is not notified, etc.
other than where an extension has been agreed by mutual consent between the
parties under this subclause, then neither party may subsequently refer it to the
adjudicator or to a tribunal.
W1.3 (3) Supporting evidence

The party referring the dispute to the adjudicator includes with his referral
information to be considered by the adjudicator. Any more information from a
party to be considered by the adjudicator is provided within four weeks of the
referral. This period may be extended if the adjudicator and the parties agree.
It is illogical to require a party to provide information with the notice of referral
and subsequently to permit the same party to put in further information. It
would be more explicit to require the party to provide all the information to be
considered by the adjudicator within four weeks of the date of referral.
599
W1.3 (4) Joinder

W1.3 (4) is very useful because it now allows the principle of joinder to be
established under this form of contract. It states that:
. . . if a matter disputed by the contractor under or in connection with
the subcontract is also a matter disputed under or in connection with the
this contract and if the sub contract allows, the contractor may refer the
subcontract dispute to the adjudicator at the same time as the main contract
referral.
The clause does not indicate whether it is restricted to a single subcontract.
There may be a chain of sub- and sub-subcontracts arising from the incident.
It is presumed that this subclause intends that all of the subcontracts and subsubcontracts, whatever their status flowing from that original dispute, can be
consolidated under the power given in this subclause. However, the subclause
does not make that clear.
W1 Powers of the adjudicator

W1.3 (5) declares that the adjudicator may take various actions during the
adjudication. It is important to examine these powers.
W1.3 (5) Power to review and revise

The initial power permits the adjudicator to review and revise any action or
inaction of the project manager or supervisor related to the dispute. With that
power is also given authority to the adjudicator to alter a quotation which has
been treated as having been accepted.
The first question to be raised is what exactly does the power to review and
revise mean. To review is straightforward in that it means examine and comment
upon.
However, to revise is very different. Revise here could mean revise with
relevance to an action taken so harshly or fundamentally that the action is
viewed by the adjudicator as having a fundamental effect upon the contract. To
carry out the same process with an inaction could, in fact, permit an adjudicator
to instruct the project manager or supervisor to take action. Whilst the power to
review any action or inaction for rationality, cogency and consistency is right
and proper, the power to revise such actions or inactions is questionable.
W1.3 (5) Power to alter a quotation

The next power within this category is a power to alter a quotation, which has
been treated as accepted. The power to alter a quotation could create a situation
where the contract is changed so fundamentally that neither party would be
willing to accept that change. Thus, is this power to be exercised only after an
application made by a party to the adjudicator or are they allowed to exercise
their own discretion? There is nothing explicit in the clause. Possibly the same
rubric applies as with arbitration that decision makers must not exercise their
600
own knowledge where it differs from that submitted by the parties without
informing the parties of the way they are minded to exercise their discretion.
These are fundamental jurisdictional powers to the NEC3 adjudication contract.
Yet, there are places in the subclause without a heading, which then proceed to
examine procedural powers available to the adjudicator. Throughout this element
of NEC3 there is a need for more thought as to clarity and English usage.
W1.3 (5) Power to act as inquisitor

The next power permits the adjudicator to act as an inquisitor in that the
adjudicator may take the initiative in ascertaining the facts and the law relating
to the dispute. This power can be problematic. Opinions differ. Seeking answers
not adduced by the parties can indicate a preference to one side as against the
other. Others see the power as a way of getting to the truth. There is no right
answer. It depends upon the circumstances of the case.
W1.3 (5) Power to order further information

Thereafter, in support of the inquisitorial power, an adjudicator is permitted to
instruct a party to provide further information relating to the dispute within a
stated time.
W1.3 (5) Power to order further action necessary to reach a

decision
These powers are supported by a power whereby an adjudicator can instruct a
party to take any other action the adjudicator considers necessary, to reach a
decision and to do so within a stated time.
No rationale is provided for this sentence. No examples are given as to what
these other actions might be. This entire clause is confusing. The initial powers
go to the root of the methods which can be applied to resolving the dispute.
The remaining powers are procedural and should be separated from the current
subclause.
W1.3 (6) Communications

W1.3 (6) requires that a communication between a party and the adjudicator is
notified to the other party at the same time. This clause is intended to balance
the omissions in W.1.3 (3). It does not do so. The principle is accepted, the use
of grammar is not. The clause should read:
. . . any communication of whatever nature between a party and the
adjudicator shall be communicated to the other party at the same time
or as soon as possible thereafter, as in the case of a notice of a telephone
conversation.
Although cl.13.1 makes clear that every communication shall be in writing, it
would be practical to repeat cl.13.1 within options W1 and W2.
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W1.3 (7) Adjudicators power to assess

W1.3 (7), by implication, authorises an adjudicator to include an assessment of
additional cost or delay caused to the contractor. In the event that this assessment
is to be made this should be assessed in the same way as the compensation event
is assessed. Again, the grammar in this clause is awkward. It is suggested that
the clause should read as follows:
If the adjudicators decision should require assessment of additional costs
or delay caused to the contractor, he shall make that assessment in the same
way as he would assess the additional costs arising from a compensation
event.
Brian Eggleston argues strongly against assessments being made by
adjudicators.2 There is little reason for contradicting those arguments.
W1.3 (8) Time schedule for adjudicators decision

W1.3 (8) directs the adjudicator to decide the dispute and to notify the parties
and the project manager of their decision and the reasons for the decision within
four weeks of the end of the period for receiving information. This four-week
period may be extended if the parties agree.
As has been appreciated throughout the adjudication process, four weeks is a
very limited period. However, the whole point of introducing adjudication is to
speed up the construction process. It is worth noting the difference between this
subclause and W1.3 (3). In W1.3 (3) the period for providing information may
be extended if the adjudicator and the parties agree, whereas in this subclause,
where presumably the request arises from the adjudicator, the decision process
is left in the hands of the parties. Although it is not stated in this subclause, it
must be fundamental to its effective working that the request for an extension
must be made before the expiry of the four-week period.
W1.3 (9) Assumptions as to the existence of the dispute

W1.3 (9) somewhat interestingly states that unless and until the adjudicator has
notified the parties of their decision, the parties, the project manager and the
supervisor may proceed as if the matter were not disputed. This is an unusual
clause. If read as stated it seems to mean that the fact of a dispute shall be
ignored until a decision is made. There are arguments in favour of this approach.
If the decision of an adjudicator is that the disputed action has not affected the
contract, then, to alter the course of the contract in anticipation of a decision to
the contrary, would be wrong. Likewise in a situation of the disputed inaction.
There are likely to be more complications where a quotation has been treated as
accepted, as, if the terms of the clause are to be followed, the acceptance will
stand. Therefore, works or actions reliant upon that quotation will proceed until
the decision of the adjudicator. It would be more appropriate were the clause
to state that existence of the dispute should not be ignored but noted.
2 Brian Eggleston, The NEC 3 Engineering and Construction Contract: A Commentary, 2nd edn
(Blackwell Publishing, 2006). pp.326327.
602
For if that were the case would not all the areas in dispute, whether actions,
inactions, quotations treated as accepted or other areas of dispute come to a
halt, be suspended or otherwise treated until the resolution by the adjudicator?
Commonsense indicates that delays of periods up to three months, albeit fairly
short when compared to arbitration or litigation, might be obviated if dispute
boards able to make recommendations, as opposed to adjudications, were in
place at the start of every NEC3 contract.
W1.3 (10) Adjudicators decision binding

W1.3 (10) is crucial to the adjudication process. It states that:
. . . the adjudicators decision is binding on the parties unless and until
revised by the tribunal and is enforceable as a matter of contractual
obligation between the parties and not as an arbitration award. The
adjudicators decision is final and binding if neither party notifies the other
within the time limits required by this contract that he is dissatisfied with a
decision of the adjudicator and intends to refer the matter to the tribunal.
The decision is critical. However, the English here requires revision. The
sentence . . . he is dissatisfied with a decision is not helpful. The first element
is that a party is dissatisfied with the decision, the decision given by the
adjudicator. What the clause may intend here is that a party may even be
dissatisfied with an element within that decision and intend to challenge that
element. The clause should then be amended to say . . . he is dissatisfied
with an element within the decision of the adjudicator and intends to refer that
matter to the tribunal. There should be an ability to challenge an element of
the decision and comply with balance.
W1.3 (11) Adjudicators power to correct mistakes, etc.

W1.3 (11) very wisely gives the adjudicator power, within two weeks of giving
their decision to the parties to correct any mistake or ambiguity. However, this
clause does not make clear whether that power can be initiated by the adjudicator
themselvesor only at the request of the parties or both. It must make clear that the
parties have the opportunity to make representations to the adjudicator. Also, it
must make clear that the adjudicator must notify the parties of any amendments
of whatever nature, that the adjudicator intends to make to their decision.
W1.4 Review by tribunal

The next element within W1.4 examines the review by the tribunal.
W1.4 (1) Review by tribunalability to refer

W1.4 (1) uses unusual grammar. The intent is clear. The result is not:
A party does not refer a dispute arising under and in connection with this
contract to the tribunal unless it has first been referred to the adjudicator
in accordance with this contract.
603
Two points arise. The clause should be phrased:

A party may not refer any dispute under or in connection with this contract
to a tribunal unless that dispute has first been referred to the adjudicator
in accordance with this contract and a decision has been issued.
The use of the words does and the confuse the issue. There may be more
than one tribunal. It could be that the tribunal will be a court or arbitration.
Also, it is not sufficient that the dispute has been referred to the adjudicator.
The reference must have resulted in a decision. It is that decision which will be
challenged. Astonishingly this mistake is corrected in W2.4 (1) where the word
referred has been removed and decided substituted.
W1.4 (2) Review by tribunalprocedure

W1.4 (2) examines the procedure necessary to initiate a reference to a tribunal
where there is dissatisfaction with a decision of the adjudicator. The wording
of this clause is also unclear. It states that:
If, after the adjudicator notifies his decision if a party is dissatisfied, he
may notify the other party that he intends to refer it to the tribunal.
A more exact instruction might be:
If, after a party has received a decision of the adjudicator as to a dispute
that party is dissatisfied with that decision, or an element within that
decision, then that party shall notify any other party that he intends to
challenge that decision by referring it to the tribunal.
W1.4 (2) Review by tribunaltime limits

Thereafter, W1.4 (2) states:
A party may not refer a dispute to the tribunal, unless this notification is
given within four weeks of notification of the adjudicators decision.
This is a very succinct limitation upon a time limit given to a party to challenge
the decision. The first word notification should be replaced by reference in
order to bring logic to the requirement.
However, a more accurate terminology might state:
A party shall not be permitted to challenge a decision of the adjudicator
and refer the challenge to a tribunal unless that challenge is made within
four weeks of the notification of the decision of the adjudicator.
There is greater clarity in W2.4 (2). No explanation is given for the differences
between W1 and W2 in the element dealing with Review by the tribunal and
the more effective drafting in W2.
604
W1.4 (3) Review by tribunalfallback powers

It is worth remembering that the heading to this clause is review by the
tribunal. W1.4 (1) and (2) certainly comply with the instruction to review.
However, W1.4 (3) gives no power to review. W1.4 (3) is a fallback provision,
which permits a party to require a tribunal, to be appointed in the contract,
to decide the dispute as a result of the failure of the adjudicator to provide a
decision within the time limits required by the contract.
The subclause again is lacking in clarity:
If the adjudicator does not notify the parties of his decision within the time
provided by this contract, a party may notify the other party that he intends
to refer the dispute to the tribunal. A party may not refer a dispute to the
tribunal unless this notification is made within four weeks of the day upon
which the adjudicator should have notified the parties of his decision.
A more accurate direction would be:
A party may only refer a dispute to the tribunal within the four-week
period commencing from the date when the adjudicator should have notified
the parties of his decision.
W1.4 (4) Review by tribunaljurisdiction

W1.4 (4) describes the scope of jurisdiciton of the tribunal as to the relevance
to the dispute. It states:The tribunal settles the dispute referred to it. Better
English would direct: The tribunal shall settle the dispute referred to it.
The tribunal has the power to reconsider any decision of the adjudicator and
review and revise any action or inaction of the project manager or supervisor
related to the dispute. This refers to the first two elements as stated in the
adjudication table. However, there is no reference in this jurisdictional clause to
the tribunal having jurisdiction to reconsider a decision arising from a quotation
for a compensation event which is treated as having been accepted, or more
relevantly, the all encompassing element which permits either party to refer
any other matter for decision of the adjudicator. These two elements are totally
absent.
W1.4 (4) Review by tribunalfurther evidence

This is a very unusual provision. The last element of W1.4 (4) states as follows:
A party is not limited in the tribunal proceedings to the information, evidence
or arguments put to the adjudicator.
This means that both parties can adduce further evidence in addition to that
placed before the adjudicator.
Therefore, a tribunal will not be deciding the matter upon the evidence placed
before the adjudicator. It is not a mere retrial of the dispute on the original
evidence; it then becomes a rehearing with fresh evidence. The justification for
this second bite at the cherry is unclear.
605
W1.4 (5) Review by tribunalarbitration

W1.4 (5) describes the procedure to be taken if the tribunal hearing the dispute
is an arbitration. It states:
If the tribunal is arbitration, the arbitration procedure, the place where the
arbitration is to be held and the method of choosing the arbitrator are those
stated in the contract data.
This is quite reasonable where the contract data on these interesting issues
has been completed. What the subclause omits to state is the procedure for
resolving disputes within the procedure where some elements of the data have
been omitted. This clause should spell out that these decisions can only be made
after inviting submissions from the parties.
W1.4 (6) Review by tribunalstatus of adjudicator

Finally, W1.4 (6) states: A party does not call the adjudicator as a witness in
the tribunal proceedings.
The grammar here is again unusual. In fact it could be said to be nonsensical.
A correct instruction would be phrased as follows: A party is not permitted to
call the adjudicator as a witness in any tribunal proceedings.
It should be noted that this subclause does not state in terms that the tribunal,
whether it be a court or arbitration, is not empowered to call the adjudicator.
W2 Introduction
Although the dispute resolution procedure in W2 is very similar to that set out
in W1, there are differences. The principles set out in the adjudication table
identifying the actions or inactions of the project manager or supervisor do
not arise under this option. There is no reference within the Housing Grants,
Construction and Regeneration Act 1996 for a need for awareness. There are
other differences which will be identified later.
It is necessary to recall that this procedure is used in the United Kingdom when
the Housing Grants, Construction and Regeneration Act 1996 applies.
W2.1 is these same as its counterpart in W1.1. However, there is an additional
instruction and a subclause.
W2.1 (1) Time limits

In W2.1 (1) the instruction states that a party may refer a dispute to the
adjudicator at any time.
W2.1 (2) Bank holidays

The subsection W2.1 (2) states that in this option time periods stated in days
exclude Christmas Day, Good Friday and bank holidays. The reason for these
606
exclusions is to ensure that the time periods applicable to the adjudication

procedures coincide with those set out in the Act.
W2.2 (1) and (2) are identical to the first option.
W2.2 (3) Adjudicator not identified, resigns or unable to act

W2.2 (3) is not the same as the first option. This option states:
If the adjudicator is not identified in the contract data or if the adjudicator
resigns or becomes unable to act.
The parties may choose an adjudicator jointly or
A party may ask the adjudicator nominating body to choose an
adjudicator.
The adjudicator nominating body chooses an adjudicator within four days
of the request. The chosen adjudicator becomes the adjudicator.
In W1 in the event of a failure to identify the adjudicator in the contract data, or
where the adjudicator resigns, the first step is for the parties to attempt to make
a joint choice. If that step is not followed then either party may ask the ANB
to make a choice. However, in W2.2 (3), the parties have a choice whether
or not to attempt to choose the adjudicator jointly or go straight to the ANB
for a determination. It is suggested that in every case parties should choose a
joint approach wherever possible. So why parties are given the option of an
alternative method of appointment as opposed to the consequential method of
appointment in option W1 is not clear. It is suggested that this clause should
be reviewed and the wording chosen in W1.2 (3) adopted in its place.
Procedural steps W2.2 (4) and (5) are identical to those set out in the option
W1.
W2.3 The adjudication

W2.3 describes the procedure of the adjudication.
W2.3 (1) Notice of adjudication

W2.3 (1) states:
Before a party refers a dispute to the adjudicator, he gives notice of
adjudication to the other party with a brief description of the dispute and
the decision, which he wishes the adjudicator to make. If the adjudicator
is named in the contract data, the party sends a copy of the notice of
adjudication to the adjudicator when it is issued.
The requirement that the referring party must give a clear indication of the
decision, which the party wishes to be made by the adjudicator, is a useful
addition to the procedural instructions. It allows the adjudicator to check whether
the dispute and jurisdiction to give that decision is compatible with the facts of
607
the dispute. That instruction is not available in the option W1. There does not
seem any reason for this omission.
W2.3 (1) Notice of adjudication and information

There is no requirement for the referring party to provide the adjudicator with
any information. When the notice of adjudication is issued no information is
required other than the brief description of the dispute. This is different from
the requirements set out in W1.2 (3) which requires that the referring party
includes with his referral the information to be considered by the adjudicator.
Again, there is no rational reason for the difference in procedure.
W2.3 (1) Notice of adjudication and adjudicators response

W2.3 (1) continues:
Within three days of the receipt of the notice of adjudication, the
adjudicator notifies the parties.
That he is able to decide the dispute in accordance with the contract
or
That he is unable to decide the dispute and has resigned.
Under the option W1, this element of the procedure, coupled with the option
given to the adjudicator to continue or resign, is not available. Brian Eggleston
considers3 that the requirement to resign does not necessarily mean that the adjudicator named in the contract is required to resign from the contract as a whole.
It is difficult to agree with that interpretation. If, at the first dispute, the named
adjudicator states that they have resigned, then the parties adhering to the
procedure will have to appoint another adjudicator or have their adjudicator
appointed by the nominating body. In that event, under this option it would not
be logical for there to be two adjudicators, one named in the contract documents
but not willing to act as a decision maker in this particular dispute, whereas the
other adjudicator appears to be positioned away from the adjudicator contract
and the contract itself and is willing to act. The only logical deduction is that the
named adjudicator, upon expressing the decision that they are unable to decide
this dispute and have resigned, is no longer to be the named adjudicator.
This conclusion is supported by the next procedural guidance in W2.3(1), which
states:
If the adjudicator does not so notify within three days of the issue of the
notice of adjudication, either party may act as if he has resigned.
This instruction refers back to the option just identified, that the adjudicator
is required, within three days of the receipt of the notice of adjudication, to
make a decision as to whether the adjudicator can decide the dispute or not.
3 Eggleston, The NEC 3 Engineering and Construction Contract: A Commentary, 2nd edition
(Blackwell Science: 2006), p.330.
608
It would not make sense for an adjudicator, who has resigned or been deemed
to have resigned by reason of indolence, to continue as the adjudicator named
in the contract data.
W2.3 (2) Adjudication information

Clause W2.3 (2) sets out the next steps that the referring party must take in the
adjudication process. The referring party must:
Within seven days of giving the notice of adjudication he
refers the dispute to the adjudicator
provides the adjudicator with the information on which he relies
including any supporting documentation and
(contrary to the silence in option W1 ) Authors comment provides
a copy of that information and supporting documents that he has
provided to the adjudicator to the other party.
In option W1, it appears that the acts of notifying and referring are simultaneous,
whereas, in this option, the acts are separated by a maximum period of seven
days. The notice is served first, followed by a reference within seven days
thereafter. It is difficult to rationalise why there is a difference between the
two procedures. It is logical, and more helpful, for the adjudicator to make a
decision as to whether or not they are able to decide a dispute having been
provided with as much basic information as possible at the outset.
W2.3 (2) Further information

W2.3 (2) completes the instruction concerning information. A party will have
an option to provide further information to the adjudicator. However, this
information will only be considered by the adjudicator if it is provided within
14 days of the date of referral. The equivalent option W1 is not identical. The
word further has been substituted by more. The time period for provision
of this information is reduced from 4 weeks to 14 days. The rationale for these
changes is opaque.
There is the implication that a party can continue to provide information up
to and indeed past the date of the issuing of the decision. That inference
must be ignored. It would be illogical for the parties to continue to provide
the adjudicator with information, unless both parties are agreed and express
leave were given after the expiry of the expressed time limits. It could also be
confusing for the adjudicator.
W2.3 (2) Further information extension of time

There is an option to extend that time limit, if the parties and the adjudicator
agree. This provision is identical to that expressed in W1 option. The comments
made there apply.
609
W2.3 (3) Joinder

Subclause W2.3 (3) permits joinder in certain circumstances. In the equivalent
subsection in option W1.3 (4), where the dispute arose under or in connection
with a subcontract was also a dispute under or in connection with this contract,
joinder of the two disputes could take place if the subcontract permitted
joinder to occur. However in this subclause, the phrase if the sub contract
allows is removed and the phrase the contractor may, with the consent of the
subcontractor, is substituted.
The first phrase is quite explicit. The decision relies upon an interpretation of
the subcontract. If the subcontract makes it clear that joinder can take place then
joinder will take place. There is no requirement to seek permission. However,
where the consent of the subcontractor is required, then whether or not the
subcontract permits, or allows the concept of joinder, the ultimate sanction is
left with the subcontractor. It cannot be said that the two concepts are almost
identical. They are fundamentally different. One turns up on the whim of the
subcontractor; the other upon the explicit terms of the subcontract itself. Again,
the rationale for such differences is difficult to express.
Subclause W.2.3 (4) is identical to its counterpart in option W1.
W2.3 (5) Adjudicators power to continue where there is a failure

to Comply with an instruction
Subclause W2.3 (5) does not occur in option W1. This states that if the party
does not comply with any instruction within the time stated by the adjudicator,
the adjudicator may continue the adjudication and make a decision based upon
information and evidence received.
This power is found in many different forms of dispute resolution. There is no
reason for its omission in option W1. However, what can be implied by the
omission is that the adjudicator does not have this power in option W1.
Subclauses W2.3 (6) and (7) are identical to the equivalent clauses in option
W1.
W2.3 (8) Time schedule for adjudicators decision

Subclause W2.3 (8) has some similarity to its equivalent in option W1. The
period of four weeks is changed to 28 days to take account of the fact that
Christmas, New Year and bank holidays must be taken into account. However,
the option allows for an extension in two phases. The first phase is for a
period of up to 14 days with the consent of the referring party. It does not
indicate who shall make the request for an extension. Presumably the extension
will be requested by the adjudicator. It appears to imply that the other party,
even if it objects to the extension, will not be allowed to have its objection
sustained.
W2.3 (8) Further extension of time

Thereafter, there is a second phase where the parties may agree to extend the
time for the decision-making process for as long as they wish. It is important
610
to note that the referring party does have this unfettered right of extension in
option W1. There is no obvious reason for granting this right to the referring
party. The consensual process set out in option W2 is preferred.
Subclause W2.3 (9) is the same as its equivalent in option W1.
W2.3 (10) Even further extension of time or deemed resignation

Subclause W.2.3 (10) does not exist in option W1. This clause states that:
If the adjudicator does not make his decision and notify it to the parties
within the time provided by the contract, the parties and the adjudicator
may agree to extend the period for making his decision. If they do not agree
to an extension, either party may act as if the adjudicator has resigned.
There is no such provision in option W1.
Strangely, this clause does not refer back to subclause W2.3 (8). It clearly refers
to the right of the parties and the adjudicator to agree to extend the period for
making the decision. However, that is not the procedure prescribed in subclause
(8), which, as has been mentioned, gives an unfettered right to the referring
party, coupled with, in the alternative, an agreed right given to the parties to
extend. The adjudicator is not mentioned. Subclause (10) refers to the decision
being made within the time provided by the contract. The time provided by the
contract can be set aside by the procedure set out in subclause (8) above. It is
suggested that under a revision, subclauses (8) and (10) should be combined.
The final sentence of subclause (10) can be added without objection to subclause
(8), which would be more effectively phrased as follows:
If the adjudicator does not make his decision and notify it to the parties
within the time limits provided within the adjudication procedure, either
party may act as if the adjudicator has resigned.
Subclauses W2.2 (11) and (12) are the same as the equivalent clauses in option
W1.
W2 Review by tribunal
The final element of option W2 is that set out in W2.4. This is the procedure
leading to the review by the tribunal.
W2.4 (1) Review by tribunalability to refer

Clause W2.4 (1) is not identical to its counterpart in option W1. In option
W1, the equivalent clause states that A party does not refer any dispute to the
tribunal, unless it has been first referred to the adjudicator.
In W2.4 (1), neither party can refer their dispute to a tribunal unless it has been
decided by the adjudicator. That statement is quite clear and consistent with the
decision-making process. The use of the word decide in this clause makes the
use of word refer in the other option yet more inexplicable.
611
W2.4 (2) Review by tribunalprocedure

Subclause W2.4 (2) sets out the steps required to refer the dispute to a tribunal.
It is not the same as its equivalent in option W1. It is more logical and more
consistent. It states:
If, after the adjudicator notifies his decision a party is dissatisfied, that
party may notify the other party of the matter which he disputes, and state
that he intends to refer it to the tribunal.
It is difficult to understand how the drafters of the equivalent clause in option W1
did not take the trouble to compare this subclause when reviewing the dispute
resolution options. Comment has been made earlier upon subclause W1.4 (2).
That subclause identifies dissatisfaction as being the key element and imposes
no requirement upon the party to identify the cause of dissatisfaction, whereas
the option in W2 is admirably explicit.
The last sentence states:
The dispute may not be referred to the tribunal unless this notification is
given within four weeks of the notification of the adjudicators decision.
The equivalent in option W1 states:
A party may not refer a dispute to the tribunal, unless this notification is
given within four weeks of the notification of the adjudicators decision.
Why is there a difference in the phraseology?
In W1.4 (3) there is a fallback provision, which permits a party to require a
tribunal, the tribunal appointed in the contract, to decide the dispute as a result
of the failure of the adjudicator to provide a decision within the time limits
required by the contract.
That clause is omitted in option W2. The reason, quite simply, is that option W2
has gone to considerable lengths to ensure that the time limits for decision can
be extended. However, as mentioned earlier, even option W2 has not simplified
the issues as to time limits and decision making in accordance with best practice.
W2 Review by tribunalfall back powers

While these exist in option W1 they are omitted in W2.
W2.4 (3) Review by tribunaljurisdiction

W2.4 (3) is almost identical to its equivalent in option W1. However, for some
very strange reason, in this option a party is limited to the arguments that it put
before the adjudicator. It may add to or change the information or evidence. In
option W1 it states: A party is not limited in the tribunal proceedings to the
information, evidence and arguments put to the adjudicator.
Therefore, by clear inference, arguments in W2 cannot be amended before the
tribunal. An unusual omission.
612
W2 Review by tribunalarbitration
W2.4 (4) describes the procedure to be taken if the tribunal hearing the dispute
does so as an arbitration. It states:
If the tribunal is arbitration, the arbitration procedure, the place where the
arbitration is to be held and the method of choosing the arbitrator are those
stated in the contract data.
This is identical to W1.
W2.4 (5) Review by tribunalstatus of adjudicator

This is identical to W1.
Conclusion
This review has not touched upon the work required of the adjudicator when
complying with some of the powers given, such as instructing parties to take
further action as a result of the exercise of revision of any action, or inaction,
and the alteration of quotations treated as accepted, let alone any assessment of
compensation within the very limited time periods.
Throughout this series of clauses, words are missing, especially nouns, and
frequently the tenses of the verbs are incorrect. This is intended to be an
international form of contract, and it is already being used in that forum. It is
much to be regretted that this important document is published in this disjointed
and abbreviated manner.
These rules are not clear. There are issues of both logical and semantic concerns.
These concerns are raised where English is the first language. Imagine the
difficulties where English is a second or third language. Putting on one side
the incorrect use of tense in verbs, a source of confusion in itself, it appears
that the options have not always been compared and differences checked and
considered. It is hoped that NEC4 will return to the principles of simplicity,
consistency and logic when the review takes place.
Complexity does not make for good contractual relations, or good value contract
management. These clauses have become unnecessarily complex.

By Peter Sheridan and Dominic Helps
Case law; Construction law; Indexes
Introduction
This issue is devoted to a ninth annual case law subject index, covering cases
concerned with the Housing, Grants Construction and Regeneration Act 1996
(HGCR Act), which it is hoped will be a useful research tool. Case references,
where available, are given in the separate alphabetical list of cases which precedes the subject matter index below. There are over 300 cases, generally with
case references apart from very recent cases, where the neutral citation is given.
Alphabetical list of cases

A v B [2002] Adj.L.R. 12/17.
A & D Maintenance & Construction Ltd v Pagehurst Construction Services Ltd
(2000) 16 Const. L.J. 199 QBD (TCC).
A & S Enterprises Ltd v Kema Holdings Ltd [2004] C.I.L.L. 2165.
A. Straume (UK) Ltd v Bradlor Developments Ltd [2000] B.C.C. 333; (2000) 2
T.C.L.R. 409.
ABB Power Construction v Norwest Holst Engineering [2000] T.C.L.R. 831;
(2001) 17 Const. L.J. 246 QBD (TCC).
ABB Zantingh Ltd v Zedal Building Services Ltd [2001] B.L.R. 66; (2001) 17
Const. L.J. 255 HC (TCC).
Abbey Developments Ltd v PP Brickwork Ltd [2003] EWHC 1987 (TCC); [2003]
C.I.L.L. 2033.
Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC
159 (TCC).
Absolute Rentals Ltd v Gencor Enterprises Ltd [2000] C.I.L.L. 1637; (2001) 17
Const. L.J. 322; HT 99 QBD (TCC).
AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360
(TCC); [2007] B.L.R. 499; [2007] C.I.L.L. 2489.
Adonis Construction Ltd v Mitchells and Butlers, Unreported August 21, 2003.
Adonis Construction v OKeefe Soil Remediation [2009] EWHC 2047 (TCC).
Aedas Architects Ltd v Skanska Construction UK Ltd [2008] CSOH 64; (2009
25 Const. L.J. 670).
Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047 (TCC);
[2009] C.I.L.L 2657.
A J Brenton v Jack Palmer, Unreported January 2001 (TCC).
Ale Heavylift v MSD (Darlington) Ltd [2006] EWHC 2080 (TCC).
All In One Building & Refurbishments Ltd v Makers UK Ltd [2005] EWHC
2943 (TCC); [2006] C.I.L.L. 2321.
613
614
Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802
(TCC); 123 Con. L.R. 1.
Allen Wilson Shopfitters v Buckingham [2005] EWHC 1165 (TCC); 102 Con.
L.R. 154.
Allied London & Scottish Properties Plc v Riverbrae Construction Ltd (August
21, 1999) [1999] B.L.R. 346; (1999) 68 Con. L.R. 79; 2 T.C.L.R. 398; [1999]
C.I.L.L. 1541 Outer House, Court of Session.
Alstom Signalling Ltd (t/a Alstom Transport Information Solutions) v Jarvis
Facilities Ltd [2004] EWHC 1285 (TCC); 95 Con. L.R. 55.
AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWHC 393
(TCC); (2004) 20 Const. L.J. 338.
AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWHC Civ
1418 CA; 96 Con. L.R. 142; (2005) 21 Const. L.J. 249.
AMEC Civil Engineering Ltd v The Secretary of State for Transport [2005] Adj.
L.R. 03/17.
Andrew Wallace Ltd v Artisan Regeneration Ltd [2006] EWHC 15 (TCC).
Aqua Design and Play International Ltd v Kier Regional Ltd [2003] B.L.R. 111.
Ardmore Construction Ltd v Taylor Woodrow Construction Ltd [2006] CSOH 3
CA176/04.
A.R.T. Consultancy Ltd v Navera Trading Ltd [2007] EWHC 1375 (TCC).
Ashley House Plc v Galliers Southern Ltd [2002] EWHC 274 (TCC).
Atlas Ceiling & Partitioning Co Ltd v Crowngate Estates (Cheltenham) Ltd
(2002) 18 Const. L.J. 49; [2000] C.I.L.L. 1639.
Austin Hall Building Ltd v Buckland Securities Ltd [2001] B.L.R. 272; (2001)17
Const. L.J. 325.
Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007] EWHC 131 (TCC);
[2007] T.C.L.R. 3; 113 Con. L.R. 13.
Avoncroft Construction Ltd v Sharba Homes (CN) Ltd [2008] EWHC 933 (TCC);
[2008] 26 E.G. 118.
AWG Construction Services Ltd v Rockingham Motor Speedway Ltd [2004]
EWHC 888 (TCC); [2004] T.C.L.R. 6.
BAL (1996) Ltd v Taylor Woodrow Construction Ltd [2004] All E.R. (D) 218
(TCC).
Baldwins Industrial Services Plc v Barr Ltd [2003] C.I.L.L. 1949.
Balfour Beatty Construction Northern Ltd v Modus Corovest (Blackpool) Ltd
[2008] EWHC 3029 (TCC); [2009] C.I.L.L. 2660.
Balfour Beatty Construction Ltd v Serco Ltd [2004] All E.R. (D) 348
(TCC).
Balfour Beatty Construction Ltd v The Mayor and Burgesses of the London
Borough of Lambeth [2002] EWHC 597; [2002] B.L.R. 288; (2002) 84 Con.
L.R. 1; [2002] C.I.L.L. 1873.
Balfour Kilpatrick Ltd v Glauser International SA Unreported July 27, 2001
QBD (TCC).
Ballast Plc v The Burrell Co (Construction Management) Ltd [2001] B.L.R. 529
Outer House, Court of Session.
Ballast Plc v The Burrell Co (Construction Management) Ltd 2003 S.C. 279;
2003 S.L.T. 137.
Baris Ltd v Kajima Construction Europe(UK) Ltd [2006] EWHC 31 (TCC).
Barnes & Elliott Ltd v Taylor Woodrow Holdings Ltd [2004] B.L.R. 111.
Barr Ltd v Klin Investments Ltd [2009] C.S.O.H. 104.
615
Barr Ltd v Law Mining Ltd (2001) 80 Con. L.R. 134; [2001] C.I.L.L. 1764
QBD (TCC).
Barrie Green v G W Integrated Building Services Ltd [2001] Adj. L.R. 07/18.
Barry D Trentham Ltd v Lawfield Investments Ltd [2002] S.C.L.R. 704.
Beck Peppiatt Ltd v Norwest Holst Construction Ltd [2003] EWHC 822 (TCC);
[2003] B.L.R. 316.
Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC);
[2008] C.I.L.L. 2633.
Bennett (Electrical) Services Ltd v Inviron Ltd [2007] EWHC 49 (TCC).
Bickerton Construction Ltd v Temple Windows Ltd Unreported June 26, 2001
QBD (TCC).
Birmingham City Council v Paddison Construction Ltd [2008] EWHC 2254
(TCC); [2008] B.L.R. 622.
Bloor Construction (United Kingdom) Ltd v Bowmer & Kirkland (London) Ltd
[2000] B.L.R. 764; [2000] 2 T.C.L.R 914; [2000] C.I.L.L. 1626 QBD (TCC).
Boardwell v k3D Property Partnership Ltd Unreported 2006.
Bothma v Mayhaven Healthcare Ltd [2007] EWCA Civ 527 (CA); 114 Con.
L.R. 131.
Bouygues United Kingdom Ltd v Dahl-Jensen United Kingdom Ltd [2000]
B.L.R. 49 QBD (TCC).
Bouygues United Kingdom Ltd v Dahl-Jensen United Kingdom Ltd [2001] 1 All
E.R. (Comm) 1041; [2000] B.L.R. 522; [2001] 3 T.C.L.R. 2; (2000) 73 Con.
L.R. 135; [2000] C.I.L.L. 1673 CA.
Bovis Lend Lease Ltd v Cofely Engineering Services [2009] EWHC 1120 (TCC).
Bovis Lend Lease Ltd v Triangle Development Ltd [2002] EWHC 3123 (TCC);
[2003] B.L.R. 31; 86 Con. L.R. 26; [2003] C.I.L.L. 1939.
Bovis Lend Lease Ltd v The Trustees of the London Clinic [2009] EWHC 64
(TCC); 123 Con. L.R.; [2009] C.I.L.L. 2672.
Bracken v Billinghurst [2003] EWCH 1333 (TCC); [2004] T.C.L.R. 4; [2003]
C.I.L.L. 2039.
Branlow Ltd v Dem-Master Demolition Ltd Unreported February 26, 2004.
Bridgeway Construction Ltd v Tolent Construction Ltd [2000] C.I.L.L. 1662
QBD (TCC).
Britcon (Scunthorpe) Ltd v Lincolnfields Ltd Unreported 2001 HT 259.
British Waterways Board v Severn Trent Water Ltd [2001] 3 W.L.R. 613; [2001]
3 All E.R. 673.
Bryen & Langley Ltd v Boston [2005] EWCA Civ 973; [2005] B.L.R.
BSF Consulting Engineers Ltd v MacDonald Crosbie [2008] All E.R. (D) 171
(TCC).
Buxton Building Contractors Ltd v Governors of Durand Primary School [2004]
EWHC 733 (TCC); [2004] B.L.R. 374; 95 Con. L.R. 120.
C. & B. Scene Concept Design Ltd v Isobars Ltd [2001] C.I.L.L. 1781 QBD
(TCC).
C. & B. Scene Concept Design Ltd v Isobars Ltd [2002] B.L.R. 93; (2002) 18
Const. L.J. 139; [2002] C.I.L.L. 1829 CA.
Camillin Denny Archtects Ltd v Adelaide Jones & Company Ltd [2009] EWHC
2110 (TCC).
Canary Riverside Development v Timtec International (2003) 19 Const. L.J. 283.
Cantillon Ltd v Urvasco Ltd [2008] B.L.R. 250; [2008] C.I.L.L. 2564.
Capital Structures Plc v Time & Tide Construction Ltd [2006] EWHC 591
(TCC); [2006] B.L.R. 226; [2006] C.I.L.L. 2345.
616
Captiva Estates Ltd v Rybarn Ltd (in administration) [2005] EWHC 2744 (TCC);
[2006] B.L.R. 66; [2006] C.I.L.L. 2333.
Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2003] B.L.R. 79;
[2003] T.C.L.R. 2.
Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWHC 778
(TCC); [2005] B.L.R. 310; 102 Con.L.R. 167.
Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ
1358, CA; [2006] B.L.R. 15; 104 Con. L.R. 1.
Cartwright v Fay Unreported February 9, 2005.
Castle Inns (Stirling) Ltd v Clarks Contracts Ltd [2005] CSOH 178.
CFW Architects (a firm) v Cowlin Construction Ltd [2006] EWHC 6 (TCC);
105 Con. L.R. 116; [2006] C.I.L.L. 2335.
Chamberlain Carpentry & Joinery Ltd v Alfred McAlpine Construction Ltd
[2002] EWHC 514.
Christiani & Shand Ltd v The Lowry Centre Development Co Ltd Unreported
2000, HT 00159 QBD (TCC).
CIB Properties Ltd v Birse Construction Ltd [2005] 1 W.L.R. 2252; [2004]
EWHC 2365 (TCC).
Citex Professional Services Ltd v Kenmore Developments Ltd Unreported
January 28, 2004.
City Inn Ltd v Shepherd Construction Ltd 2002 S.L.T. 781; 2001 S.C.L.R. 961
CJP Builders Ltd v William Verry Ltd [2008] EWHC 2025 (TCC); [2008] B.L.R.
545; [2008] T.C.L.R. 10; [2008] C.I.L.L. 2609.
Clark Contracts Ltd v The Burrell Co (Construction Management) Ltd 2002
S.L.T. 103.
Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd [2004] EWCA
Civ 1757; [2005] B.L.R. 63; 99 Con. L.R.1.
Colt International Ltd v Holt Insulation Ltd Unreported 2000 Outer House,
Court of Session.
Company (No.1299 of 2001), Re A [2001] C.I.L.L. 1745, Ch D.
Comsite Projects Ltd v Andritz AG [2003] EWHC 958 (TCC); (2004) 20 Const.
L.J. 24.
Connex South Eastern Ltd v M. J. Building Services Group Plc [2004] EWHC
1518 (TCC); [2004] B.L.R. 333; 95 Con. L.R. 43.
Connex South Eastern Ltd v M. J. Building Services Group Plc [2005] EWCA
Civ 193 CA; [2005] 1 W.L.R. 3323; [2005] B.L.R. 201; 100 Con. L.R. 16.
Conor Engineering Ltd v Les Constructions Industrielles de la Mediteranee SA
[2004] B.L.R. 212.
Costain Ltd v Strathclyde Builders Ltd 2003 Scot. C.S. 316.
Costain Ltd v Wescol Steel Ltd [2003] EWHC 312.
Cowlin Construction Ltd v CFW Architects [2003] C.I.L.L. 1961.
CPL Contracting Ltd v Cadenza Residential Ltd [2005] T.C.L.R. 1 (TCC).
CSC Braehead Leisure Ltd v Laing ORourke Scotland Ltd 2008 S.L.T. 697;
2008 G.W.D. 21-346.
Cubitt Building & Interiors Ltd v Fleetglade Ltd [2006] EWHC 3413 (TCC);
110 Con. L.R. 36; [2007] C.I.L.L. 2431.
Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd [2008]
EWHC 1020 (TCC); [2008] B.L.R. 354; [2008] C.I.L.L. 2588.
Curot Contracts Ltd v Castle Inns (Stirling) Ltd [2008] CSOH 179.
617
Cygnet Healthcare Plc v Higgins City Ltd (2000) 16 Const. L.J. 394 QBD
(TCC).
Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd [2009] EWHC
73 (TCC); 122 Con. L.R. 66.
David McLean Housing Contractors Ltd v Swansea Housing Association Ltd
[2002] B.L.R. 125; [2002] C.I.L.L. 1811.
David McLean Contractors Ltd v Albany Building Ltd [2005] Adj.L.R. 11/10
(TCC).
Dean & Dyball Construction Ltd v Kenneth Grubb Associates [2003] EWHC
2465 (TCC); 100 Con. L.R. 92.
Debeck Ductwork Installation Ltd v T. & E. Engineering Ltd Unreported October 14, 2002.
Deko Scotland Ltd v Edinburgh Royal Joint Venture 2003 S.L.T. 727; 2003
G.W.D. 13396.
Devonport Royal Dockyards Ltd v Carillion Construction Ltd; Carillion Construction Ltd v Devonport Royal Dockyards Ltd [2005] All E.R. (D) 366.
DGT Steel & Cladding Ltd v Cubitt Building &Interiors Ltd [2007] EWHC 1584
(TCC); [2008] Bus. L.R. 132.
Discain Project Services Ltd v Opecprime Development Ltd (No.2) [2001] B.L.R.
285; [2001] C.I.L.L. 1739 QBD (TCC).
Discain Project Services Ltd v Opecprime Developments Ltd [2000] B.L.R 402;
[2000] C.I.L.L. 1676 QBD (TCC).
Domsalla v Dyason [2007] EWHC 1174 (TCC); [2007] B.L.R 348; 112 Con.
L.R. 95.
The Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC 70 (TCC); [2009]
Bus. L.R. 1026; [2009] B.L.R. 135; 122 Con. L.R. 55; [2009] C.I.L.L. 2676.
Dumarc Building Sevices Ltd v Salvador Rico Unreported January 31, 2003.
Durabella Ltd v J. Jarvis & Sons Ltd (2001) 83 Con. L.R. 145; [2001] C.I.L.L.
1796.
Earls Terrace Properties Ltd v Waterloo Investments Ltd [2002] C.I.L.L. 1889.
Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC); [2008]
C.I.L.L. 2592.
Edinburgh Royal Joint Venture 2003 S.L.T. 727.
Edmund Nuttall Ltd v R. G. Carter Ltd [2002] B.L.R. 312; (2002) 82 Con. L.R.
24.
Edmund Nuttall Ltd v Sevenoaks District Council [2000] Adj. L.R. 04/14.
Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2108 (TCC).
Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160
(TCC).
Elanay Contracts Ltd v The Vestry [2001] B.L.R. 33; [2000] C.I.L.L. 1679 QBD
(TCC).
Emcor Drake & Scull Ltd v Costain/Skanska Joint Venture [2004] EWHC 2439
(TCC); 97 Con. L.R. 142; (2004) 148 S.J.L.B. 1314.
Environmental Services Ltd, Re Unreported November 14, 2004.
Epping Electrical Company Ltd v Briggs and Forrester (Plumbing Services) Ltd
[2007] EWHC 4 (TCC); [2007] B.L.R. 126; 113 Con. L.R. 1; (2007) 23 Const.
L.J. 239.
F. W. Cook Ltd v Shimizu (United Kingdom) Ltd [2000] B.L.R. 199; [2000]
C.I.L.L. 1613.
618
Faithful & Gould Ltd v ARCAL Ltd (in receivership) Unreported 2001
No.E190023 QBD (TCC).
Farebrother Building Services Ltd v Frogmore Investments Ltd [2001] C.I.L.L.
1762 QBD (TCC).
Fastrack Contractors Ltd v Morrison Construction Ltd [2000] B.L.R. 168;
(2000) 16 Const. L.J. 273.
Fence Gate Ltd v James R. Knowles Ltd [2001] C.I.L.L. 1757; TCC 25/01
SF102200 TCC.
Fleming Buildings Ltd v Forrest [2008] CSOH 103.
Galliford Northern Ltd v Markel Capital Ltd Unreported May 12, 2003 QBD.
Galliford Try Construction Ltd v Michael Heal Associates Ltd [2003] EWHC
2886 (TCC); 99 Con. L.R. 19.
Geris Handelsgesellschaft GmbH v Les Constructions Industrielles de la
Mediteranee SA [2005] EWHC 499 (TCC).
Gibson Lea Retail Interiors Ltd v Makro Self Service Wholesalers Ltd [2001]
B.L.R. 407 QBD (TCC).
Gibson v Imperial Homes [2002] EWHC 676 (TCC).
Gillies Ramsay Diamond v PJW Enterprises Ltd [2002] C.I.L.L. 1901 Outer
House, Court of Session.
Gipping Construction Ltd v Eaves Ltd [2008] EWHC 3134 (TCC).
Glencot Development & Design Co Ltd v Ben Barrett & Son Contractors Ltd
[2001] B.L.R. 207; (2001) 17 Const. L.J. 336 QBD (TCC).
GPN Ltd (In Receivership) v O2 (UK) Ltd [2004] EWHC 2494 (TCC); [2005]
C.I.L.L. 2285.
Gray & Sons Builders (Bedford) Ltd v Essential Box Company Ltd [2006] EWHC
2520 (TCC); 108 Con. L.R. 49; [2006] C.I.L.L. 2395.
Griffin Ltd t/a K. & D. Contractors v Midas Homes Ltd (2000) 78 Con. L.R.
152 QBD (TCC).
Grovedeck Ltd v Capital Demolition Ltd [2000] B.L.R. 181; [2000] 2 T.C.L.R.
689; [2000] C.I.L.L. 1604 QBD (TCC).
Guardi Shoes Ltd v Datum Contracts [2002] C.I.L.L. 1934.
Harlow & Milner Ltd v Teasdale [2006] EWHC 535 (TCC).
Harlow & Milner Ltd v Teasdale [2006] EWHC 54 (TCC).
Harris Calnan Construction Company Ltd v Ridgewood (Kensington) Ltd [2007]
EWHC 2738 (TCC); [2008] Bus. L.R. 636; [2008] B.L.R. 132.
Hart Builders (Edinburgh) Ltd v St Andrew Ltd Unreported 69/02 August 20,
2002.
Hart Builders (Edinburgh) Ltd v St Andrew Ltd Unreported 69/02 January 10,
2003.
Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC); [2007] B.L.R. 30;
109 Con. L.R. 67.
Harwood Construction Ltd v Lantrode Ltd [2001] Adj. L.R. 11/24.
Hatmet Ltd v Herbert [2005] Adj.C.S. 11/18.
Herschel Engineering Ltd v Breen Properties Ltd (No.2) [2000] B.L.R. 272;
[2000] 2 T.C.L.R. 473; (2000) 70 Con.L.R. 1; (2000) 16 Const.L.J. 366 QBD
(TCC).
Herschel Engineering Ltd v Breen Property Ltd [2000] B.L.R. 272; (2000) 70
Con. L.R. 1; [2000] 2 T.C.L.R 473; (2000) 16 Const. L.J. 66; [2000] C.I.L.L.
1616 QBD (TCC).
H.G. Construction Ltd v Ashwell Homes (East Anglia) Ltd 2007 EWHC 144
(TCC); [2007] B.L.R. 175.
619
Hills Electrical & Mechanical Plc v Dawn Construction Ltd 2004 S.L.T. 477.
Hillview Industrial Developments (UK) Ltd v Botes Building Ltd [2006] All E.R.
(D) 280; [2006] EWHC 1365 (TCC).
Hitec Power Protection BV v MCI Worldcom Ltd [2002] EWHC 1953.
Holt Insulation Ltd v Colt International Ltd [2001] EWHC 451 (TCC).
Homer Burgess Ltd v Chirex (Annan) Ltd [2000] B.L.R. 124; (2000) 71 Con.
L.R. 245; (2000) 16 Const. L.J. 242; [2000] C.I.L.L. 1580 Outer House, Court
of Session.
Hortimax Ltd v Hedon Salads Ltd [2004] Adj.L.R. 10/15.
HS Works Ltd v Enterprise Managed Services Ltd [2009] EWHC 729 (TCC).
Humes Building Contracts Ltd v Charlotte Homes (Surrey) Ltd [2007] Adj. L.R.
01/04.
Hurst Stores and Interiors Ltd v M. L. Europe Property Ltd [2003] EWHC 1650
(TCC); (2003) 148 Sol. Jo. LB 421.
Hurst Stores and Interiors Ltd v ML Europe Property Ltd [2004] EWCA Civ
490 CA; [2004] B.L.R 249; 94 Con. L.R. 66.
IDE Contracting Ltd v R. G. Carter Cambridge Ltd [2004] B.L.R. 172.
Impresa Castelli SpA v Cola Holdings Ltd May 2, 2002, HT 01286 QBD
(TCC).
Interserve Industrial Services Ltd v Cleveland Bridge UK Ltd [2006] All E.R.
(D) 49; [2006] EWHC 741 (TCC).
Jamil Mohammad v Dr Michael Bowles, Unreported December 1, 2002.
Jerome Engineering Ltd v Lloyd Morris Electrical Ltd [2002] C.I.L.L. 1827.
Jim Ennis Construction Ltd v Premier Asphalt Ltd [2009] EWHC 1906 (TCC).
John Cothliff Ltd v Allen Build (North West) Ltd [1999] C.I.L.L. 1530 Liverpool
CC (TCC).
John Mowlem Ltd v Hydra-Tight Ltd (2001) 17 Const. L.J. 358; [2000] C.I.L.L.
1649; HT 00184 QBD (TCC).
John Roberts Architects Ltd v Parkcare Homes (No.2) Ltd [2005] All E.R.
(D)341 (Jul); [2005] EWHC 1637 (TCC); [2005] B.L.R 484.
John Roberts Architects Ltd v Parkcare Homes (No.2) Ltd [2006] EWCA Civ
64 (CA); [2006] B.L.R 106; (2006) 22 Const. L.J. 343.
John Stirling t/a M&S Contracts v Westminster Properties Scotland Ltd [2007]
Scot.C.S. CSOH 117.
Joinery Plus Ltd (in administration) v Laing Ltd [2003] B.L.R. 184; (2003) 87
Con. L.R. 87; [2003] B.P.I.R. 890.
Joseph Finney Plc v Vickers 2001 HT 00454 QBD (TCC).
J. T. Mackley & Co Ltd v Gosport Marina Ltd [2002] B.L.R. 367.
J W Hughes Building Contractors Ltd v GB Metalwork Ltd [2003] EWHC 2421
(TCC).
Karl Construction (Scotland) Ltd v Sweeney Civil Engineering (Scotland) Ltd
2001 S.C.L.R. 95; 2001 G.W.D. 117; (2002) 18 Const. L.J. 55 Outer House,
Court of Session.
2002 S.C.L.R. 766; 2002 G.W.D. 5151 Outer House, Court of Session.
Ken Biggs Contractors v Norman Unreported August 20, 2004.
Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd [2006] EWHC
848 (TCC); [2006] B.L.R. 315; [2006] C.I.L.L. 2353.
Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd (No 2) [2008]
EWHC 2454 (TCC); [2009] B.L.R. 90; [2008] C.I.L.L. 2639.
620
KNS Industrial Services Ltd v Sindall Ltd (2001) 17 Const. L.J. 170; [2000]
C.I.L.L.1652; HT 00164 QBD (TCC).
L Brown & Sons v Crosby Homes (North West) Ltd [2005] EWHC 3503 (TCC).
Lafarge (Aggregates) Ltd v London Borough of Newham [2005] EWHC 1337
(Comm); [2005] 2 Lloyds Rep. 577.
Lathom Construction Ltd v Cross [1999] C.I.L.L. 1568.
Lead Technical Services Ltd v CMS Medical Ltd [2007] EWCA Civ 316;
(2007) 23 Const. L.J. 547.
Letchworth Roofing Company v Sterling Building Company [2009] EWHC
1119 (TCC); [2009] C.I.L.L. 2717.
Levolux A. T. Ltd v Ferson Contractors Ltd [2002] B.L.R. 341; [2003] C.I.L.L.
1956.
Liberty Mercian Ltd v Dean & Dyball Construction Ltd [2008] EWHC 2617
(TCC); [2009] B.L.R. 29; [2009] 1 E.G.L.R. 1; [2009] 6 E.G. 102; [2009]
C.I.L.L. 2648.
Linaker Ltd v Riviera Construction Ltd Unreported 1999; [1999] Adj. L.R.
11/04.
Linnett v Halliwells LLP [2009] EWHC 319 (TCC); [2009] 1 C.L.C. 157;
[2009] B.L.R. 312; 123 Con. L.R. 104; [2009] C.I.L.L. 2704.
Lloyds Projects Ltd v John Malnick Unreported, 2005.
London & Amsterdam Properties Ltd v Waterman Partnership Ltd [2004]
B.L.R. 179.
London Underground Ltd v Metronet Rail BCV Ltd (In Administration) [2008]
EWHC 502 (TCC); (2008) 152(14) S.J.L.B. 28.
Lovell Projects Ltd v Legg and Carver [2003] B.L.R. 452.
LPL Electrical Services Ltd v Kershaw Mechanical Services Ltd (2001)
Unreported HT 00427 QBD (TCC).
M. Rohde Construction v Nicholas Markham-David (No 2)[2007] EWHC 1408
(TCC).
M. Rohde Construction v Nicholas Markham-David [2006] EWHC 814 (TCC);
[2006] B.L.R 291; [2006] C.I.L.L. 2364.
Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] All E.R.
143; [1999] B.L.R. 93; [1999] T.C.L.R. 113; (1999) 64 Con. L.R. 1; (1999) 15
Const. L.J. 3000; [1999] C.I.L.L. 1470.
Makers UK Ltd v The Mayor and Burgesses of the London Borough of Camden
[2008] EWHC 1836 (TCC); [2008] B.L.R. 470; 120 Con. L.R. 161; [2008]
C.I.L.L. 2618.
Management Solutions & Professional Consultants Ltd v Bennett (Electrical)
Services Ltd [2006] EWHC 1720 (TCC).
Martin Girt v Page Bentley [2002] EWHC 2434 (TCC).
Masons (a firm) v WD King Ltd [2003] EWHC 3124 (TCC); 92 Con. L.R. 144.
Mast Electrical Services v Kendall Cross Holdings Ltd [2007] EWHC 1296
(TCC); [2007] N.P.C. 70.
Maxi Construction Management Ltd v Mortons Rolls Ltd [2001] C.I.L.L. 1784
Maymac Environmental Services Ltd v Faraday Building Services Ltd [2000]
C.I.L.L. 1685 QBD (TCC).
The Mayor and Burgesses of the London Borough of Camden v Makers UK Ltd
[2009] EWHC 605 (TCC); [2009] C.I.L.L. 2720.
McAlpine PPS Pipelines Systems Joint Venture v Transco Plc [2004] EWHC
2030 (TCC); 96 Con. L.R. 69; [2004] B.L.R. 352.
621
McConnell Dowell Constructors (Aust) Pty Ltd v National Grid Gas Ltd [2006]
EWHC 2551 (TCC); [2007] B.L.R. 92.
Mead General Building Ltd v Dartmoor Properties Ltd [2009] EWHC 200
(TCC); [2009] B.C.C. 510; [2009] B.L.R. 225; [2009] C.I.L.L. 2686.
Mecright v T. A. Morris Developments Ltd Unreported June 22, 2001.
Melville Dundas Ltd (In Receivership) v George Wimpey UK Ltd [2007] UKHL
18 (HL); [2007] Bus. L.R. 1182; [2007] 1 W.L.R. 1136.
Melville Dundas Ltd v George Wimpey UK Ltd 2005 S.L.T. 24.
Melville Dundas Ltd v George Wimpey UK Ltd 2006 S.L.T. 95; [2006] B.L.R.
164.
Michael John Construction Ltd v Golledge [2006] EWHC 71 (TCC); 2006
T.C.L.R. 3.
Midland Expressway Ltd v Carillion Construction Ltd (No.2) [2005] EWHC
2963 (TCC); 106 Con. L.R. 154.
Midland Expressway Ltd v Carillion Construction Ltd [2005] EWHC 2810
(TCC); 106 Con. L.R. 49.
Midland Expressway Ltd v Carillion Construction Ltd [2006] All E.R. (D) 105;
EWHC 1505 (TCC).
Millers Specialist Joinery Co Ltd v Nobles Construction [2001] C.I.L.L. 1770;
No.103553, Salford CC (TCC) 64/00.
Mitsui Babcock Energy Services Ltd v Foster Wheeler Energier OY 2001
S.L.T.1158; P780/0 Outer House, Court of Session.
Mivan Ltd v Lighting Technology Project Unreported 2001 IHL.
M. J. Gleeson Group Plc v Devonshire Green Holding Ltd Unreported 2004.
Monavon Construction Ltd v Davenport [2006] EWHC 1810 (TCC); [2006]
B.L.R. 389; 108 Con. L.R. 34.
Mott MacDonald Ltd v London & Regional Properties Ltd [2007] EWHC 1055
(TCC); 113 Con.L.R. 33; [2007] C.I.L.L. 2481.
Multiconcept Developments Ltd v Abacus (C. I.) Ltd [2002] Adj. L.R. 03/22.
Multiplex Constructions (UK) Ltd v Mott Macdonald Ltd [2007] EWHC 20
(TCC); 110 Con. L.R. 63; [2007] C.I.L.L. 2446.
Multiplex Constructions (UK) Ltd v West India Quay Development Company
(Eastern) Ltd [2006] EWHC 1569 (TCC); 111 Con. L.R. 33.
Murray Building Services v Spree Unreported 2004.
Naga On Building Services v Euston Hotel Ltd Unreported.
Nageh v Giddings [2006] EWHC 3240 (TCC).
Nolan Davis Ltd v Steven Catton Unreported 2000 QBD (TCC) No.590.
Nordot Engineering Services Ltd v Siemens Plc [2001] C.I.L.L. 1778; TCC
No.SF 00901 TCC 16/00.
Northern Developments (Cumbria) Ltd v J. & J. Nichol [2000] B.L.R. 158;
(2000) 2 T.C.L.R. 261.
North Midland Construction Plc v A E & E Lentjes UK Ltd [2009] EWHC
1371 (TCC); [2009] C.I.L.L. 2736.
Nottingham Community Housing Association Ltd v Powerminster Ltd [2000]
B.L.R. 759; (2000) 16 Const. L.J. 499 QBD (TCC).
Norwest Holst Ltd v Carfin Developments Ltd [2008] CSOH 138.
OSC Building Services Ltd v Interior Dimensions Contracts Ltd [2009] EWHC
248 (TCC); [2009] C.I.L.L. 2688.
Orange EBS Ltd v ABB Ltd [2003] B.L.R. 323.
Outwing Construction Ltd v Randell & Son Ltd [1999] B.L.R. 156; (1999) 64
Con. L.R. 59; (1999) 15 Const. L.J. 308 (TCC).
622
Palmac Contracting Ltd v Park Lane Estates Ltd [2005] EWHC 919 (TCC);
[2005] B.L.R. 301.
Palmers Ltd v ABB Power Construction Ltd [1999] B.L.R. 426; (1999) 68
Con. L.R. 52; [1999] C.I.L.L.1543 TCC.
Parke v The Fenton Gretton Partnership [2001] C.I.L.L. 1712.
Parsons Plastics (Research and Development) Ltd v Purac Ltd [2002] B.L.R.
334 CA.
Patrick PA Birchall v West Morland Car Sales Ltd Unreported 2001 (TCC
Liverpool).
Paul Jensen v Staveley Industries Plc Unreported September 27, 2001.
Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] B.L.R. 296 CA.
Picardi (t/a Picardi Architects) v Cuniberti [2002] EWHC 2923 (TCC); [2003]
B.L.R. 487; 94 Con. L.R. 81.
Pierce Design International Ltd v Johnston [2007] EWHC 1691 (TCC); [2007]
B.L.R. 381; 115 Con. L.R. 110.
Prentice Island Ltd v Castle Contracting Ltd Unreported 2003 (judgment of
Sheriff Principal).
Primus Build Ltd v Pompey Centre Ltd [2009] EWHC 1487 (TCC); [2009]
C.I.L.L. 2739.
Pring & St Hill Ltd v C. J. Hafner [2002] EWHC 1775 (TCC); (2004) 20
Const. L.J. 402.
Pro Design Ltd v New Millennium Experience Co Ltd Unreported September
26, 2001.
Project Consultancy Group v The Trustees of the Gray Trust [1999] B.L.R.
377; (1999) 65 Con. L.R. 146; [1999] C.I.L.L. 1531; [2000] 2 T.C.L.R 72
QBD (TCC).
PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC).
Purac Ltd v Byzac Ltd [2004] Scot.C.S. 247, 2005 S.C.L.R. 244.
Pynes Three Ltd v Transco Ltd [2005] Adj.L.R. 07/22.
Quality Street Properties (Trading) Ltd v Elmwood (Glasgow) Ltd [2002]
C.I.L.L. 1922.
Quartzelec Ltd v Honeywell Control Systems Ltd [2008] EWHC 3315 (TCC);
[2009] B.L.R. 328; [2009] C.I.L.L. 2665.
Quietfield Ltd v Vascroft Contractors Ltd [2006] EWHC 174 (TCC); 109 Con.
L.R. 29; [2006] C.I.L.L. 2329.
Quietfield Ltd v Vascroft Contractors Ltd [2006] EWCA Civ 1737, CA; [2007]
B.L.R. 67; 114 Con. L.R. 81; [2007] C.I.L.L. 2425.
Rainford House Ltd (In Administrative Receivership) v Cadogan Ltd [2001]
B.L.R. 416; [2001] C.I.L.L. 1709; HT 01014 QBD (TCC).
Rankilor v Igoe (M) Ltd [2006] Adj.LR 01/27; January 27, 2006.
R. Durtnell & Sons Ltd v Kaduna Ltd [2003] B.L.R. 225.
Re Isovel Contracts Ltd [2001] All E.R. (D) 440.
Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] All E.R. (D);
[2006] EWHC 1994 (TCC).
Reinwood Ltd v L Brown & Sons Ltd [2008] W.L.R 696; [2008] B.L.R. 219;
116 Con. L.R.1.
Rentokil Ailsa Environmental Ltd v Eastend Civil Engineering Ltd [1999]
C.I.L.L. 1506 Sheriff Court.
R. G. Carter Ltd v Edmund Nuttall Ltd (No.2) [2002] B.L.R. 359.
R. G. Carter Ltd v Edmund Nuttall Ltd [2002] B.L.R. 312.
RGS (U.K.) Ltd v Lighting Electrical Construction Ltd Unreported 2002.
623
Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd [2007] EWHC

2421 (TCC).
Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd [2007] EWHC
2507 (TCC); [2008] T.C.L.R. 2; 115 Con. L.R. 149; [2007] C.I.L.L. 2532.
Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd 2005 S.L.T. 341.
Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd, ([2004] ScotCS
94.
R J Knapman Ltd v Richards [2006] EWHC 2518 (TCC); 108 Con. L.R. 64;
[2006] C.I.L.L. 2400.
RJT Consulting Engineers Ltd v D. M. Engineering (N.I.) Ltd [2001]
C.I.L.L.1766; No. 35/01 TCC.
RJT Consulting Engineers Ltd v D. M. Engineering (N.I.) Ltd [2002] B.L.R.
217 CA.
Robert McAlpine Ltd v Pring & St Hill Ltd Unreported 2001 QBD (TCC) TCC
779.
Rok Build Ltd v Harris Wharf Development Ltd [2006] EWHC 3573 (TCC).
Rossco Civil Engineering Ltd v Dwr Cymru Cyfryngedic [2004] Adj. L.R.
07/15.
RSL (South West) Ltd v Stansell Ltd [2003] EWCA 1319 CA.
RSL (South West) Ltd v Stansell Ltd [2003] EWHC 1390 (TCC).
Rupert Morgan Building Services (LLC) Ltd v Jervis [2004] 1 W.L.R. 1867
CA.
Samuel Thomas Construction v J. & B. Developments Unreported January 28,
2000.
Scrabster Harbour Trust v Mowlem Plc (T/A Mowlem Marine) 2005 S.L.T 499.
Scrabster Harbour Trust v Mowlem Plc [2006] C.S.I.H. 12.
Shaw v Massey Foundation & Pilings Ltd [2009] EWHC 493 (TCC).
Shepherd Construction v Mecright Ltd [2000] B.L.R. 489.
Sherwood & Casson UK Ltd v Mackenzie Engineering Ltd [2000] 2 T.C.L.R.
418; [2000] C.I.L.L. 1577 TCC.
Shimizu Europe Ltd v Automajor Ltd [2002] B.L.R. 113; (2002) 18 Const. L.J.
259; [2002] C.I.L.L. 1831.
Shimizu Europe Ltd v LBJ Fabrications Ltd [2003] EWHC 1229 (TCC); [2003]
B.L.R. 381.
Sim Group Ltd v Neil Jack [2002] ScotCS 158.
Simons Construction Ltd v Aardvark Developments Ltd [2004] B.L.R. 117.
Sindall Ltd v Solland [2001] 3 T.C.L.R. 30; [2001] C.I.L.L. 1808.
Skanska Construction UK Ltd v The ERDC Group Ltd [2003] S.C.L.R. 296.
S. L. Timber Systems Ltd v Carillion Construction Ltd [2001] B.L.R. 516;
[2002] T.C.L.R. 3; [2002] C.I.L.L. 1760 Outer House, Court of Session.
Solland International Ltd v Daraydan Holdings Ltd [2002] EWHC 220 (TCC);
(2002) 83 Con. L.R. 109.
South West Contractors Ltd v Birakos Enterprises Ltd [2006] EWHC 2794
(TCC).
Specialist Ceiling Services Northern Ltd v ZVI Construction (UK) Ltd [2004]
B.L.R. 403.
St Andrews Bay Development Ltd v HBG Management Ltd, 2003 S.L.T. 740;
2003 G.W.D. 13397.
Staveley Industries Plc v Odebrecht Oil & Gas Services Ltd (2001) 98(10)
L.S.G. 46 TCC.
624
Stiell Ltd v Riema Control Systems Ltd [2001] 3 T.C.L.R. 9; 2000 S.L.T.1102;
2000 G.W.D. 23875; X1/53/00 Outer House, Court of Session.
Strathmore Building Services Ltd v Colin Scott Greig t/a Hestia Fireside Design
(2001) 17 Const. L.J. 72; 2000 S.L.T. 815; 2000 G.W.D. 19735 Outer House,
Court of Session.
Stubbs Rich Architects v W. H. Tolley & Son Ltd Unreported August 8, 2001.
Surplant Ltd v Ballast Plc Unreported 2002 TC 33/02.
T & T Fabrications Ltd v Hubbard Architectural Metalwork Ltd [2008] Adj.
L.R. 04/21.
Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd see Pegram Shopfitters Ltd v Tally
Weijl (UK) Ltd.
Tera Construction Ltd v Yuk Tong Lam [2005] EWHC B1 (TCC).
The Construction Centre Group Ltd v The Highland Council [2002] B.L.R. 476;
[2002] C.I.L.L. 1906 Outer House, Court of Session.
The Construction Centre Group Ltd v The Highland Council 2003 S.L.T. 623;
2003 G.W.D. 13399; XA123/02 Inner House, Court of Session.
The Construction Centre Group Ltd v The Highland Council [2003] ScotCS 114
The Construction Centre Group Ltd v The Highland Council Unreported August
1, 2003 Outer House, Court of Session.
The Highland Council v The Construction Centre Group Ltd [2003] Scot.C.S.
221 Outer House, Court of Session.
Thermal Energy Construction Ltd v AE & E Lentjes UK Ltd [2009] EWHC 408
(TCC).
Thomas Frederics Construction Ltd v Keith Wilson [2003] EWCA Civ 1494,
CA; [2004] B.L.R. 23; 91 Con. L.R. 161.
Tim Butler Contractors Ltd v Merewood Homes Ltd (2002) 18 Const. L.J. 74.
Total M. & E. Services Ltd v ABB Building Ltd [2002] EWHC 248; [2002]
C.I.L.L. 1857.
Tracy Bennett (Mr) v FMK Construction Ltd [2005] EWHC 1268 (TCC); 101
Con. L.R. 92.
Treasure & Son Ltd v Martin Dawes [2007] EWHC 2420 (TCC); [2008] B.L.R.
24; [2007] C.I.L.L. 2533.
Treasure & Son Ltd v Martin Dawes (No 2) [2008] EWHC 2181 (TCC).
Trustees of the Harbours of Peterhead v Lilley Construction Ltd 2003 S.L.T.
731; 2003 S.C.L.R. 433; 2003 G.W.D. 13400.
Trustees of the Stratfield Saye Estate v AHL Construction Ltd [2004] All E.R.
(D) 77.
Try Construction Ltd v Eton Town House Group Ltd [2003] C.I.L.L. 1982.
Tyco Fire & Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd [2008]
B.L.R. 285; [2008] 1 C.L.C. 625.
Universal Music Operations Ltd v Flairnote Ltd Unreported August 24, 2000
TCC.
Va Tech Wabag UK Ltd v Morgan Est (Scotland) Ltd May 30, 2002 Outer House,
Court of Session, CA 46/02.
Van Oord ACZ Ltd and Harbour & General Works Ltd Joint Venture v The Port
of Mostyn Ltd Unreported September 10, 2003 (TCC).
Vaughan Engineering Ltd v Hinkins & Frewin Ltd 2003 S.L.T. 428; 2003
G.W.D. 9245.
Vaultrise Ltd v Paul Cook Unreported April 6, 2004 TCC.
625
VGC Construction Ltd v Jackson Civil Engineering Ltd [2008] EWHC 2082
(TCC); 120 Con. L.R. 178; [2008] C.I.L.L. 2627.
VHE Construction Plc v RBSTB Trust Co Ltd [2000] B.L.R. 187; (2000) 70
Con. L.R. 51; [2000] C.I.L.L. 1592; (2000) 2 T.C.L.R. 278 TCC.
Vision Homes Ltd v Lancsville Construction Ltd [2009] EWHC 2042 (TCC).
Vitpol Building Service v Samen [2008] EWHC 2283 (TCC); [2009] Bus. L.R.
D65.
Walter Lilly & Co Ltd v DMW Developments Ltd [2008] EWHC 3139 (TCC).
Watkin Jones & Son Ltd v LIDL UK GmbH (No.1) [2002] C.I.L.L. 1834.
Watkin Jones & Son Ltd v LIDL UK GmbH (No.2) [2002] C.I.L.L. 1847.
Watson Building Services Ltd v Graham Harrison and Miller Preservation Ltd
2001 S.L.T. 846 Outer House, Court of Session.
Westdawn Refurbishments Ltd v Roselodge Ltd [2006] Adj.L.R. 04/25.
Westminster Building Co Ltd v Andrew Beckingham [2004] B.L.R. 163.
Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd
[2008] EWHC 3138 (TCC); [2009] C.I.L.L. 2666.
Whiteways Contractors (Sussex) Ltd v Impresa Castelli Construction UK Ltd
(2000) 16 Const. L.J. 453; [2000] C.I.L.L. 1664.
William Hare Ltd v Shepherd Construction Ltd [2009] EWHC 1603 (TCC).
William Naylor v Greenacres Curling Ltd 2001 S.L.T. 1092; P514/01 Outer
House, Court of Session.
William Oakley v Airclear Environmental Ltd [2002] C.I.L.L. 1824.
William Verry (Glazing Systems) v Furlong Homes Ltd [2005] EWHC 138
(TCC).
William Verry Ltd v Camden London Borough Council [2006] All E.R. (D) 292.
William Verry Ltd v North West London Communal Mikvah [2004] EWHC 1300
(TCC); [2004] B.L.R. 308; 96 Con. L.R. 96.
Wimbledon Construction Co 2000 Ltd v Derek Vago [2005] EWHC 1086 (TCC);
[2005] B.L.R. 374; 101 Con. L.R. 99.
Woods Hardwick Ltd v Chiltern Air Conditioning Ltd [2001] B.L.R. 23; [2001]
C.I.L.L. 1698 Outer House, Court of Session.
Workplace Technologies Plc v E. Squared Ltd [2000] C.I.L.L. 1607; HT 0034
QBD (TCC).
YCMS Ltd v Grabiner [2009] EWHC 127 (TCC); [2009] B.L.R. 211; 123 Con.
L.R. 202; [2009] C.I.L.L. 2692.
Yarm Road Ltd v Costain Ltd Unreported July 30, 2001 HT 01228 QBD (TCC).
Case law subject matter index
Abatement
Company (No.1299 of 2001), Re A
Millers Specialist Joinery Co Ltd v Nobles Construction Ltd
Solland International Ltd v Daraydan Holdings Ltd
Woods Hardwick Ltd v Chiltern Air Conditioning Ltd
Abuse of process
Benfield Construction Ltd v Trudson (Hatton) Ltd
Birmingham City Council v Paddison Construction Ltd
626
Connex South Eastern Ltd v M. J. Building Services Group Plc (CA)

Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd
Emcor Drake & Scull Ltd v Costain/Skanska Joint Venture
Fastrack Contractors Ltd v Morrison Construction Ltd
Galliford Try Construction Ltd v Michael Heal Associates Ltd
Harwood Construction Ltd v Lantrode Ltd
EWHC 1505 (TCC)
Ad hoc adjudication agreement

Parsons Plastics (Research and Development) Ltd v Purac Ltd (CA)
Adjudication: general purpose

AWG Construction Services Ltd v Rockingham Motor Speedway Ltd
Borough of Lambeth
C. & B. Scene Concept Design Ltd v Isobars Ltd (CA)
Carillion Construction Ltd v Devonport Royal Dockyard Ltd
City Inn Ltd v Shepherd Construction Ltd
Galliford Northern Ltd v Markel Capital Ltd
J W Hughes Building Contractors Ltd v GB Metalwork Ltd
Lead Technical Services Ltd v CMS Medical Ltd
Macob Civil Engineering Ltd v Morrison Construction Ltd
Mecright Ltd v TA Morris Developments Ltd
R. G. Carter Ltd v Edmund Nuttall Ltd (No.2)
S. L. Timber Systems Ltd v Carillion Construction Ltd
The Construction Centre Group Ltd v The Highland Council
Watson Building Services Ltd v Logan, Balfour & Manson
William Naylor, t/a Powerfloated Concrete Floors v Greenacres Curling Ltd
Adjudicators appointment
appointment of new adjudicator (court has no jurisdiction): R. G. Carter Ltd v
Edmund Nuttall Ltd (No.2)
IDE Contracting Ltd v R. G. Carter Cambridge Ltd
Palmac Contracting Ltd v Park Lane Estates Ltd
revocation of appointment (court has no jurisdiction): R. G. Carter Ltd v Edmund
Nuttall Ltd (No.2)
Scheme, paras 2(1) and 6(1): IDE Contracting Ltd v R. G. Carter Cambridge Ltd
Adjudicators decisions
approbation/reprobation: R J Knapman Ltd v Richards Castle Inns (Stirling) Ltd
v Clark Contracts Ltd
Cubitt Building & Interiors Ltd v Fleetglade Ltd
627
demonstrably wrong: Bouygues (United Kingdom) Ltd v Dahl-Jensen (United

Kingdom) Ltd ; Macob Civil Engineering Ltd v Morrison Construction Ltd ; VHE
Construction Plc v RBSTB Trust Co Ltd
effect and status: Alstom Signalling Ltd v Jarvis Facilities Ltd ; City Inn Ltd v
Shepherd Construction Ltd ; KNS Industrial Services (Birmingham) Ltd v Sindall
Ltd ; The Project Consultancy Group v The Trustees of the Gray Trust; VHE
effect of marking draft: Simons Construction Ltd v Aardvark Developments
Ltd
employing assistants: Balfour Beatty Construction Ltd v The Mayor and
Burgesses of the London Borough of Lambeth
estoppel: R J Knapman Ltd v Richards
final decision by court and moneys repaidlegal basis for repayment: Castle
Inns (Stirling) Ltd v Clark Contracts Ltd
functus officio: Outwing Construction Ltd v H. Randell & Son Ltd ; Joinery Plus
Ltd (in administration) v Laing Ltd
in accordance with the law: Allied London and Scottish Properties Plc v
Riverbrae Ltd
lateness: AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd ; Aveat
Heating Ltd v Jerram Falkus Construction Ltd ; Cubitt Building & Interiors
Ltd v Fleetgate Ltd ; Epping Electrical Company Ltd v Briggs and Forrester
(Plumbing Services) Ltd ; Hart Investments Ltd v Fidler; Letchworth Roofing
Company v Sterling Building Company; Mott MacDonald Ltd v London &
Regional Properties Ltd ; M. Rohde Construction v Nicholas Markham-David ;
Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd ; St Andrews Bay
Development Ltd v HBG Management Ltd ; Simons Construction Ltd v Aardvark
Developments Ltd;Mott MacDonald Ltd v London & Regional Properties
Ltd
meaning not clear: Vision Homes Ltd v Lancsville Construction Ltd
onus of proof in subsequent final determination in arbitration or litigation
(adjudicators decisionno effect on): City Inn Ltd v Shepherd Construction
Ltd
procedural error: Macob Civil Engineering Ltd v Morrison Construction Ltd
reasons (effect of giving): Joinery Plus Ltd (in administration) v Laing Ltd
(status of): Gillies Ramsay Diamond v PJW Enterprises Ltd ; Multiplex
Constructions (UK) Ltd v West India Quay Development Company (Eastern)
Ltd
relevance of views expressed by adjudicator after decision: Joinery Plus Ltd (in
administration) v Laing Ltd
set-off against: Avoncroft Construction Ltd v Sharba Homes (CN) Ltd ; Balfour
Beatty Construction Ltd v Serco Ltd ; Conor Engineering Ltd v Les Constructions
Industrielles de la Mediteranee SA; The Construction Centre Group Ltd v The
Highland Council ; David McLean Contractors Ltd v Albany Building Ltd ;
Fleming Buildings Ltd v Forrest; R J Knapman Ltd v Richards; M. J. Gleeson
628
Group Plc v Devonshire Green Holding Ltd ; Parsons Plastics (Research and
Development)Ltd v Purac Ltd ; Robert McAlpine Ltd v Pring & St Hill Ltd;
Total M&E Services Ltd v ABB Building Ltd
slip rule: Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd ;
David McLean Housing Contractors Ltd v Swansea Housing Association Ltd ;
Edmund Nuttall Ltd v Sevenoaks District Council; St Andrews Bay Development
Ltd v HBG Management Ltd
termination provision: Westwood Structural Services Ltd v Blyth Wood Park
Management Company Ltd
Third Parties (Rights Against Insurers) Act 1930: Galliford (UK) Ltd v Market
Capital Ltd Tim Butler Contractors Ltd v Merewood Homes Ltd
two or more adjudicators: Sherwood & Casson Ltd v Mackenzie Engineering Ltd
Vision Homes Ltd v Lancsville Construction Ltd
whether affect burden of proof in subsequent proceedings: City Inn Ltd v
Shepherd Construction Ltd
whether analogous to architects/engineers certificates: Stiell Ltd v Riema
Control Systems Ltd
whether create a debt: Jamil Mohammad v Dr Michael Bowles
whether severable: Griffin v Midas Homes Ltd ; Hitec Power Protection BV v
MCI Worldcom Ltd ; Homer Burgess Ltd v Chirex (Annan) Ltd; KNS Industrial
Services (Birmingham) Ltd v Sindall Ltd
withholding against: Conor Engineering Ltd v Les Constructions Industrielles de
la Mediteranee SA; Parsons Plastics (Research and Development) Ltd v Purac
Ltd ; Total M&E Services Ltd v ABB Building Ltd
Adjudicators fees
Barrie Green v G W Integrated Building Services Ltd
Cartwright v Fay
Castle Inns (Stirling) Ltd v Clark Contracts Ltd
Faithful and Gould Ltd v Arcal Ltd
Griffin v Midas Homes Ltd
Interserve Industrial Services Ltd v Cleveland Bridge UK Ltd
Joinery Plus Ltd (in administration) v Laing Ltd
Linnett v Halliwells LLP
Mott MacDonald Ltd v London & Regional Properties Ltd
Paul Jensen v Staveley Industries Plc
Prentice Island Ltd v Castle Contracting Ltd
Rankilor v Igoe (M) Ltd
reasonableness of: Barrie Green v G W Integrated Building Services Ltd
Simons Construction Ltd v Aardvark Developments Ltd
Stubbs Rich Architects v W. H. Tolley & Son Ltd
629
Administration (insolvency)
A. Straume (UK) Ltd v Bradlor Developments Ltd
Canary Riverside Development v Timtec International
Re Isovel Contracts Ltd
William Hare Ltd v Shepherd Construction Ltd
Agreement evidenced in writing

A. & D. Maintenance and Construction Ltd v Pagehurst
Construction Services Ltd
A.R.T. Consultancy Ltd v Navera Trading Ltd
Allen Wilson Shopfitters v Buckingham
Branlow Ltd v Dem-Master Demolition Ltd
BSF Consulting Engineers Ltd v MacDonald Crosbie
Connex South Eastern Ltd v M J Building Services Group Plc
Dean & Dyball Construction Ltd v Kenneth Grubb Associates
Estor Ltd v Multifit (UK) Ltd
Grovedeck Ltd v Capital Demolition Ltd
Hart Investments Ltd v Fidler
Hatmet Ltd v Herbert
Lloyds Projects Ltd v John Malnick
Services Ltd
Mast Electrical Services v Kendall Cross Holdings Ltd
Patrick PA Birchall v West Morland Car Sales Ltd
RJT Consulting Engineers Ltd v DM Engineering (N.I.) Ltd
Redworth Construction Ltd v Brookdale Healthcare Ltd
Trustees of the Stratfield Saye Estate v AHL Construction Ltd
Westdawn Refurbishments Ltd v Roselodge Ltd
William Oakley v Airclear Environmental Ltd
Ambush
Austin Hall Building Ltd v Buckland Securities Ltd
Bovis Lend Lease Ltd v The Trustees of the London Clinic
CIB Properties Ltd v Birse Construction Ltd
Edmund Nuttall Ltd v R. G. Carter Ltd (April 18, 2002)
Amount due (meaning)

630
Arbitration
compared with adjudication: A. Straume (UK) Ltd v Bradlor Developments Ltd ;
stay of proceedings: Collins (Contractors) Ltd v Baltic Quay Management (1994)
Ltd ; David McLean Housing Contractors Ltd v Swansea Housing Association
Ltd ; Joseph Finney Plc v Vickers; Trustees of the Harbours of Peterhead v Lilley
Construction Ltd
Assignment
Bias
AMEC Capital Projects Ltd v Whitefriars City Estates Ltd
apparent bias: AMEC Capital Projects Ltd v Whitefriars City Estates Ltd (CA);
A &S Enterprises Ltd v Kema Holdings Ltd ; Discain Project Services Ltd v Barr
Ltd v Klin Investments Ltd Opecprime Development Ltd (No.2); Makers UK Ltd
v The Mayor and Burgesses of the London Borough of Camden; Specialist Ceiling Services Northern Ltd v
ZVI Construction (UK) Ltd
A &S Enterprises Ltd v Kema Holdings Ltd
Aveat Heating Ltd v Jerram Falkus Construction Ltd
Camillin Denny Archtects Ltd v Adelaide Jones & Company Ltd
Discain Project Services Ltd v Opecprime Development Ltd
Glencot Development & Design Co Ltd v Ben Barrett & Son (Contractors) Ltd
Michael John Construction Ltd v Golledge
Pring & St Hill Ltd v C. J. Hafner
Specialist Ceiling Services Northern Ltd v ZVI Construction (UK) Ltd
without prejudice offer: Specialist Ceiling Services Northern Ltd v ZVI Construction (UK) Ltd
CE 99
John Roberts Architects Ltd v Parkcare Homes (No.2) Ltd
CEDR rules for adjudication

Stiell Ltd v Riema Control Systems Ltd
CIC Model Procedure

allows adjudicator to meet parties separately: fairness: Dean & Dyball Construction Ltd v Kenneth Grubb Associates
Bouygues (United Kingdom) Ltd v Dahl-Jensen (United Kingdom) Ltd
Bridgeway Construction Ltd v Tolent Construction Ltd
631
David McLean Contractors Ltd v Albany Building Ltd

Epping Electrical Company Ltd v Briggs and Forrester (Plumbing Services)
Ltd
Hillview Industrial Developments (UK) Ltd v Botes Building Ltd
Primus Build Ltd v Pompey Centre Ltd
Commencement
Tracy Bennett (Mr) v FMK Construction Ltd
Compromise agreement
McConnell Dowell Constructors (Aust) Pty Ltd v National Grid Gas
Ltd
Concurrent court proceedings

Herschel Engineering Ltd v Breen Property Ltd
Confidentiality
Construction contract
ABB Zantingh Ltd v Zedal Building Services Ltd
Adonis Construction v OKeefe Soil Remediation
Bennett (Electrical) Services Ltd v Inviron Ltd
Comsite Projects Ltd v Andritz AG
Conor Engineering Ltd v Les Constructions Industrielles de la Mediteranee
SA
Gillies Ramsay Diamond v PJW Enterprises Ltd
Gibson Lea Retail Interiors Ltd v Makro Self Service Wholesalers Ltd
Homer Burgess Ltd v Chirex (Annan) Ltd
McConnell Dowell Constructors (Aust) Pty Ltd v National Grid Gas Ltd
North Midland Construction plc v A E & E Lentjes UK Ltd
whether a variation agreement is a construction contract: Earls Terrace
Properties Ltd v Waterloo Investments Ltd
Yarm Road Ltd v Costain Ltd
Construction Contracts Exclusion Order 1998 (SI 1998/648)
Captiva Estates Ltd v Rybarn Ltd
632
Construction operations
ABB Power Construction Ltd v Norwest Holst Engineering Ltd
Ballast Plc v The Burrell Co (Construction Management) Ltd
crane (mobile) plus driver: Ballast Plc v The Burrell Co (Construction Management) Ltd
Edenbooth Ltd v Cre8 Developments Ltd
Fence Gate Ltd v James R. Knowles Ltd
Hortimax Ltd v Hedon Salads Ltd
North Midland Construction Plc v A E & E Lentjes UK Ltd
Purac Ltd v Byzac Ltd
structures forming part of the land: Staveley Industries Plc v Odebrecht Oil &
Gas Services Ltd
section 105: Nottingham Community Housing Association Ltd v Powerminster
Ltd; Palmers Ltd v ABB Power Construction Ltd
section 105(2)(c): Purac Ltd v Byzac Ltd
Consumer
Lovell Projects Ltd v Legg and Carver
Picardi v Cuniberti
Contract administrator
whether appointment a construction contract: Gillies Ramsay Diamond v PJW
Enterprises Ltd
Contract in writing
A. & D. Maintenance and Construction Ltd v Pagehurst Construction Services
Ltd
Allen Wilson Joinery Ltd v Privetgrange Construction Ltd
Ale Heavylift v MSD (Darlington) Ltd
Andrew Wallace Ltd v Artisan Regeneration Ltd
Carillion Construction Ltd v Devonport Royal Dockyard
Connex South Eastern Ltd v M. J. Building Services Group Plc
633
Debeck Ductwork Installation Ltd v T. & E. Engineering Ltd

Euro Construction Scaffolding Ltd v SLLB Construction Ltd
Gibson v Imperial Homes
Grovedeck doubted: Rossco Civil Engineering Ltd v Dwr Cymru Cyfryngedic
Harris Calnan Construction Company Ltd v Ridgewood (Kensington) Ltd
Hatmet Ltd v Herber
Services Ltd
M. Rohde Construction v Nicholas Markham-David
Monavon Construction Ltd v Davenport
Murray Building Services v Spree
oral variation: Linnett v Halliwells LLP
PT Building Services Ltd v Rok Build Ltd
RJT Consulting Engineers Ltd v DM Engineering (N.I.) Ltd (CA)
Rossco Civil Engineering Ltd v Dwr Cymru Cyfryngedic
T & T Fabrications Ltd v Hubbard Architectural Metalwork Ltd
Thomas Frederics Construction Ltd v Keith Wilson
Treasure & Son Ltd v Martin Dawes
Contract interpretation
London Underground Ltd v Metronet Rail BCV Ltd
Costs
costs as damages: R. G. Carter Ltd v Edmund Nuttall Ltd (April 18, 2002)
costs of adjudication not recoverable as damages: Total M. & E. Services Ltd v
ABB Building Ltd
costs, in litigation: relevance of not going to non-statutory, ad hoc adjudication
pre-action: Monavon Construction Ltd v Davenport
Deko Scotland Ltd v Edinburgh Royal Joint Venture
634
Gray & Sons Builders (Bedford) Ltd v Essential Box Company Ltd
indemnity costs: Gray & Sons Builders (Bedford) Ltd v Essential Box Company
Ltd
John Cothliff Ltd v Allen Build (North West) Ltd
Linaker Ltd v Riviera Construction Ltd
Nolan Davis Ltd v Steven P. Catton
Northern Developments (Cumbria) Ltd v J. & J. Nichol
RGS (UK) Ltd v Lighting Electrical Construction Ltd (Civil Procedure Rule Pt
45.3)
South West Contractors Ltd v Birakos Enterprises Ltd
Civil Procedure Rule (CPR) Pt 24

See Summary judgment.
Damages
power to award: Gillies Ramsay Diamond v PJW Enterprises Ltd
Declaratory relief
Abbey Developments Ltd v PP Brickwork Ltd
Adonis Construction Ltd v Mitchells and Butlers
Alstom Signalling Ltd v Jarvis Facilities Ltd
Beck Peppiatt Ltd v Norwest Holst Construction Ltd
L Brown & Sons v Crosby North West Homes
Costain Ltd v Wescol Steel Ltd
Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd
Devonport Royal Dockyards Ltd v Carillion Construction Ltd
The Dorchester Hotel Ltd v Vivid Interiors Ltd
during adjudication: The Dorchester Hotel Ltd v Vivid Interiors Ltd
Earls Terrace Properties Ltd v Waterloo Investments Ltd
635
H.G. Construction Ltd v Ashwell Homes (East Anglia) Ltd
HS Works Ltd v Enterprise Managed Services Ltd
Hurst Stores and Interiors Ltd v M. L. Europe Property Ltd
J. T. Mackley & Co Ltd v Gosport Marina Ltd
Liberty Mercian Ltd v Dean & Dyball Construction Ltd
London & Amsterdam Properties Ltd v Waterman Partnership Ltd
Midland Expressway Ltd v Carillion Construction Ltd
EWHC 1505 (TCC)
Multiplex Constructions (UK) Ltd v Mott Macdonald Ltd
Palmers Ltd v ABB Power Construction Ltd
R. G. Carter Ltd v Edmund Nuttall Ltd (April 18, 2002)
Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd
Shepherd Construction Ltd v Mecright Ltd
Shimizu Europe Ltd v LBJ Fabrications Ltd
Staveley Industries Plc v Odebrecht Oil & Gas Services Ltd
Treasure & Son Ltd v Martin Dawes (No 2)
two decisions of different adjudicators, same parties: Management Solutions &
Professional Consultants Ltd v Bennett (Electrical) Services Ltd
Vitpol Building Service v Samen
Walter Lilly & Co Ltd v DMW Developments Ltd
Watkin Jones & Son Ltd v LIDL UK GmbH (No.2)
William Verry (Glazing Systems) v Furlong Homes Ltd
Workplace Technologies Plc v E. Squared Ltd
Development agreement
Discontinuance
EWHC 1505 (TCC)
Dispute
All In One Building & Refurbishments Ltd v Makers UK Ltd
AMEC Civil Engineering Ltd v The Secretary of State for Transport
636
arising under, out of or in connection with the contract: L Brown & Sons v
Crosby North West Homes
Collins (Contractors) Ltd v Baltic Quay Management
dispute substantially the same as one previously referred: Benfield Construction
Ltd v Trudson (Hatton) Ltd ; Birmingham City Council v Paddison Construction
Ltd ; H.G. Construction Ltd v Ashwell Homes (East Anglia) Ltd ; Holt Insulation
Ltd v Colt International Ltd ; Mivan Ltd v Lighting Technology Projects Ltd ;
Sherwood & Casson Ltd v
Mackenzie Engineering Ltd
Edmund Nuttall Ltd v R. G. Carter Ltd
evidence: Bovis Lend Lease Ltd v The Trustees of the London Clinic
Hitec Power Protection BV v MCI Worldcom Ltd
John Stirling t/a M&S Contracts v Westminster Properties Scotland Ltd
(Court of Session)
EWHC 1505 (TCC)
Orange EBS Ltd v ABB Ltd
R. Durtnell & Sons Ltd v Kaduna Ltd
Surplant Ltd v Ballast Plc
under/in connection with: Michael John Construction Ltd v Golledge
VGC Construction Ltd v Jackson Civil Engineering Ltd
Watkin Jones & Son Ltd v LIDL UK GMBH
William Verry Ltd v North West London Communal Mikvah
DOM/1
KNS Industrial Services (Birmingham) Ltd v Sindall Ltd
Letchworth Roofing Company v Sterling Building Company
R. G. Carter Ltd v Edmund Nuttall Ltd
637

DOM/2
Bickerton Construction Ltd v Temple Windows Ltd
CJP Builders Ltd v William Verry Ltd
Jerome Engineering Ltd v Lloyd Morris Electrical Ltd
RSL (South West) Ltd v Stansell Ltd
Dwelling exception
Picardi v Cuniberti
Samuel Thomas Construction Ltd v Bick and Bick [aka J. & B. Developments]
Shaw v Massey Foundation & Pilings Ltd
Economic duress
Capital Structures Plc v Time & Tide Construction Ltd
Election (equitable doctrine of)

Enforcement
AvB
Ltd
Able Construction (UK) Ltd v Forest Property Development Ltd
Air Design (Kent) Ltd v Deerglen (Jersey) Ltd
Adonis Construction Ltd v Mitchells and Butlers
appropriate means of: Harlow & Milner Ltd v Teasdale
The Atlas Ceiling & Partition Co Ltd v Crowngate Estates (Cheltenham) Ltd
638

Borough of Lambeth
Balfour Beatty Construction Ltd v Serco Ltd
Barr Ltd v Klin Investments Ltd
Barr Ltd v Law Mining Ltd
Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd
Britcon (Scunthorpe) Ltd v Lincolnfields Ltd
Bryen & Langley Ltd v Boston
Buxton Building Contractors Ltd v Governors of Durand Primary School
C. & B. Scene Concept Design Ltd v Isobars Ltd
Cantillon Ltd v Urvasco Ltd
charging order: Harlow & Milner Ltd v Teasdale (No.2)
Christiani and Nielsen Ltd v Lowry Centre Development Co Ltd
conflicting contractual provisions; determination provision conflicting with
adjudication enforcement provision: Ferson Contractors Ltd v Levolux A. T.
Ltd ; A v B; The Construction Centre Group Ltd vThe Highland Council
correct identity of claimant: Rossco Civil Engineering Ltd v Dwr Cymru
Cyfryngedic
costs of, indemnity costs: Gray & Sons Builders (Bedford) Ltd v Essential Box
Company Ltd
F. W. Cook v Shimizu (UK) Ltd
costs: assessed costs rather than fixed costs may be ordered pursuant to CPR
45.1: Linaker Ltd v Riviera Construction Ltd
CPL Contracting Ltd v Cadenza Residential Ltd
declaratory relief which if granted would prevent enforcement: Abbey Developments
Ltd v PP Brickwork Ltd
Domsalla v Dyason
Dumarc Building Sevices Ltd v Salvador Rico
Edmund Nuttall Ltd v Sevenoaks District Council
Elanay Contracts Ltd v The Vestry
639
general principles: Michael John Construction Ltd v Golledge
Mediteranee SA
Gipping Construction Ltd v Eaves Ltd
Glencot Development & Design Co Ltd v Ben Barrett & Son (Contractors)
Ltd
Gray & Sons Builders (Bedford) Ltd v Essential Box Company Ltd
Harlow & Milner Ltd v Teasdale
Herschel Engineering Ltd v Breen Property Ltd (No.2)
Holt Insulation Ltd v Colt International Ltd
Humes Building Contracts Ltd v Charlotte Homes (Surrey) Ltd
R J Knapman Ltd v Richards
LPL Electrical Services Ltd v Kershaw Mechanical Services Ltd
M. J. Gleeson Group Plc v Devonshire Green Holding Ltd
Services Ltd
Maymac Environmental Services Ltd v Faraday Building Services Ltd
McAlpine PPS Pipelines Systems Joint Venture v Transco Plc
Mead General Building Ltd v Dartmoor Properties Ltd
Mecright Ltd v T. A. Morris Developments Ltd
Mivan Ltd v Lighting Technology Projects Ltd
M. Rohde Construction v Nicholas Markham-David (No 2)
(Eastern) Ltd
640
Nordot Engineering Services Ltd v Siemens Plc

OSC Building Services Ltd v Interior Dimensions Contracts Ltd
Outwing Construction Ltd v H. Randell & Son Ltd
Parke v The Fenton Gretton Partnership
Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd
Picardi v Cuniberti
Pierce Design International Ltd v Johnston
Quartzelec Ltd v Honeywell Control Systems Ltd
Quietfield Ltd v Vascroft Contractors Ltd
Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd
Robert McAlpine Ltd v Pring & St Hill Ltd
Rok Build Ltd v Harris Wharf Development Ltd
Rossco Civil Engineering Ltd v Dwr Cymru Cyfryngedic
Sherwood & Casson Ltd v Mackenzie Engineering Ltd
stay of execution: Absolute Rentals Ltd v Gencor Enterprises Ltd
Thermal Energy Construction Ltd v AE & E Lentjes UK Ltd
Tim Butler Contractors Ltd v Merewood Homes Ltd
Try Construction Ltd v Eton Town House Group Ltd (full trial, not summary
judgment)
VHE Construction Plc v RBSTB Trust Co Ltd
Westwood Structural Services Ltd v Blyth Wood Park Management Company
Ltd
where jurisdiction issue: The Project Consultancy Group v The Trustees of the
Gray Trust
Whiteways Contractors (Sussex) Ltd v Impresa Castelli Construction UK
Ltd
William Verry Ltd v Camden London Borough Council
YCMS Ltd v Grabiner
641
Enterprise Act 2002

Estoppel
by convention: Bovis Lend Lease Ltd v Cofely Engineering Services; William
Oakley v Airclear Environmental Ltd
Maymac Environmental Services Ltd v Faraday Building Services Ltd. See also
Issue estoppel: Benfield Construction Ltd v Trudson (Hatton) Ltd
waiver: Christiani and Nielsen Ltd v Lowry Centre Development Co Ltd
European Convention on Human Rights

Final certificate
Castle Inns (Stirling) Ltd v Clark Contracts Ltd
Freezing order
prior to adjudication: Pynes Three Ltd v Transco Ltd
Pynes Three Ltd v Transco Ltd
HGCR Actpurpose/policy
Domsalla v Dyason
Rainford House Ltd v Cadogan Ltd
R. G. Carter Ltd v Edmund Nuttall Ltd (No.2) (injustice)
St Andrews Bay Development Ltd v HBG Management Ltd
Try Construction Ltd v Eton Town House Group Ltd
Va Tech Wabag UK Ltd v Morgan Est (Scotland) Ltd
GC/works/sub-contract
Ferson Contractors Ltd v Levolux A. T. Ltd
642
HGCR Actretrospective effect

Human Rights Act 1998

ICE/NEC/Blue Form
AMEC Civil Engineering Ltd v The Secretary of State for Transport
ICE 6th: requirement of engineers decision a condition precedent to arbitration
under cl.66, regardless of whether what it is desired to do is to go to arbitration
to challenge the decision of an adjudicator: J. T. Mackley & Co Ltd v Gosport
Marina Ltd
John Mowlem & Co Plc v Hydra-Tight Ltd
see also R.G. Carter Ltd v Edmund Nuttall Ltd
ICE 6th, cl.66: Lafarge (Aggregates) Ltd v London Borough of Newham; Trustees
of the Harbours of Peterhead v Lilley Construction Ltd ; Van Oord ACZ Ltd and
Harbour & General Works Ltd Joint Venture v The Port of Mostyn Ltd
IFC 98
Vaultrise Ltd v Paul Cook
YCMS Ltd v Grabiner
Impartiality
Borough of Lambeth
Injunction
Ltd
Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd
643
Environmental Services Ltd, Re

Guardi Shoes Ltd v Datum Contracts
Midland Expressway Ltd v Carillion Construction Ltd (No 2)
Midland Expressway Ltd v Carillion Construction Ltd (No 3)
John Mowlem & Co Plc v Hydra-Tight Ltd
Pynes Three Ltd v Transco Ltd
Quality Street Properties (Trading) Ltd v Elmwood (Glasgow)
Ltd
Skanska Construction UK Ltd v The ERDC Group Ltd
Inquisitorial process
Insolvency
Bouygues (United Kingdom) Ltd v Dahl-Jensen (United Kingdom)
Ltd
Canary Riverside Development v Timtec Internationa
CVA: Mead General Building Ltd v Dartmoor Properties Ltd
Jamil Mohammad v Dr Michael Bowles
Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd
(No 2)
Melville Dundas Ltd v George Wimpey UK Ltd
Tera Construction Ltd v Yuk Tong Lam
Wimbledon Construction Company2000 Ltd v Derek Vago
644
Insolvency rules
Insurance
Tyco Fire & Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars
Ltd
Interest
Baris Ltd v Kajima Construction Europe (UK) Ltd
The Scheme para.20(c): Carillion Construction Ltd v Devonport Royal Dockyard
Ltd
Interim/final payment application

Interim payment under CPR r.25.7
JCT
AMEC Capital Projects Ltd v Whitefriars City Estates Ltd (JCT 98 with
contractors design)
Avoncroft Construction Ltd v Sharba Homes (CN) Ltd
Borough of Lambeth
Buxton Building Contractors Ltd v Governors of Durand Primary School ;
City
Inn Ltd v Shepherd Construction Ltd
cll.30.9, 41A: Tracy Bennett (Mr) v FMK Construction Ltd
JCT 98: Cubitt Building & Interiors Ltd v Fleetglade Ltd ;Try Construction Ltd
v Eton Town House Group Ltd
JCT 81 with contractors design: VHE Construction Plc v RBSTB Trust Co Ltd
JCT 98 private without quantities: Cantillon Ltd v Urvasco Ltd
645
JCT 98 with contractors design: A &S Enterprises Ltd v Kema Holdings Ltd ;
Benfield Construction Ltd v Trudson (Hatton) Ltd ; CPL Contracting Ltd v
Cadenza Residential Ltd ; Melville Dundas Ltd v George
Wimpey UK Ltd ; Pierce Design International Ltd v Johnston; Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd ; Surplant Ltd v Ballast Plc; Watkin
Jones & Son Ltd v LIDL UK GMBH (No.1); Watkin Jones & Son Ltd v LIDL
UK GmbH (No.2)
JCT Building Contract for Home Owner/Occupier: Cartwright v Fay
Joseph Finney Plc v Vickers
management contract: Ballast Plc v The Burrell Co (Construction Management)Ltd
Prime Cost Contract: Treasure & Son Ltd v Martin Dawes
with contractors design: C. & B. Scene Concept Design Ltd v Isobars Ltd ;
David McLean Housing Contractors Ltd v Swansea Housing Association Ltd ;
Maxi Construction Management Ltd v Morton Rolls Ltd ; Palmac Contracting Ltd
v Park Lane Estates Ltd ; St Andrews Bay Development Ltd v HBG Management
Ltd ; Watkin Jones & Son Ltd v LIDL UK GmbH (No.2)
JCT Adjudication agreement

JCT Building Contract for Home Owner

Cartwright v Fay
JCT Minor Works

Domsalla v Dyason
JCT Works Contract

646
Judicial review
Mitsui Babcock Energy Services Ltd v Foster Wheeler Energia OY
Jurisdiction
Ltd
A J Brenton v Jack Palmer
ad hoc submission: Christiani and Nielsen Ltd v Lowry Centre Development Co
Ltd ; Nordot Engineering Services Ltd v Siemens Plc; The Project Consultancy
Group v The Trustees of the Gray Trust; Thomas Frederics Construction Ltd v
Keith Wilson
adjudicator no power to determine: Palmers Ltd v ABB Power Construction Ltd
Andrew Wallace Ltd v Artisan Regeneration Ltd
appointment of contract administrator; professional negligence; alleged failure
to take submissions into account; alleged failure to give intelligible reasons:
back-dating: Christiani and Nielsen Ltd v Lowry Centre Development Co Ltd
Ballast Plc v The Burrell Co (Construction Management) Ltd (Court of Session)
Bothma v Mayhaven Healthcare Ltd
Bovis Lend Lease Ltd v Cofely Engineering Services
647

Cartwright v Fay
club: where respondent a club: Michael John Construction Ltd v Golledge
compromised claim sought to be referred: Quality Street Properties (Trading)
Ltd v Elmwood (Glasgow) Ltd
conferring jurisdiction on the adjudicator to determine his own jurisdiction:
Hortimax Ltd v Hedon Salads Ltd ; J W Hughes Building Contractors Ltd v
GB Metalwork Ltd ; Nordot Engineering Services Ltd v Siemens Plc; Thomas
Frederics Construction Ltd v Keith Wilson; Whiteways Contractors (Sussex)
Ltd v Impresa Castelli Construction UK Ltd
construction of notice of intention to refer: LPL Electrical Services Ltd v
Kershaw Mechanical Services Ltd
contract in writing: approach where issue is whether: BSF Consulting Engineers
Ltd v MacDonald Crosbie; Management Solutions & Professional Consultants
Ltd v Bennett (Electrical) Services Ltd
contractual adjudication: Impresa Castelli SpA v Cola Holdings Ltd
Cowlin Construction Ltd v CFW Architects
Curot Contracts Ltd v Castle Inns (Stirling) Ltd
date of contract: The Atlas Ceiling & Partition Co Ltd v Crowngate Estates
(Cheltenham) Ltd
decision based on wrong set of contract conditions: Joinery Plus v Laing Ltd
Domsalla v Dyason
effect on of decision of architect on EOT under JCT contract; whether objection
must be made at time of adjudication or not at all; approbation and reprobation:
economic duress: Capital Structures Plc v Time & Tide Construction Ltd
648

estoppel: Bovis Lend Lease Ltd v Cofely Engineering Services
Farebrother Building Services Ltd v Frogmore Investments Ltd
Fleming Buildings Ltd v Forrest
general reservation: Air Design (Kent) Ltd v Deerglen (Jersey) Ltd ; Bothma v
Mayhaven Healthcare Ltd ; Euro Construction Scaffolding Ltd v SLLB Construction Ltd
interest, jurisdiction to award: Allen Wilson Joinery Ltd v Privetgrange Construction Ltd
Jerome Engineering Ltd v Lloyd Morris Electrical Ltd
John Stirling t/a M&S Contracts v Westminster Properties Scotland Ltd
late reservation as to jurisdiction not effective: Cowlin Construction Ltd v CFW
Architects
Services Ltd
Martin Girt v Page Bentley
Maymac Environmental Services Ltd v Faraday Building Services Ltd
649

EWHC 1505 (TCC)
(Eastern) Ltd
no contract argument: Cowlin Construction Ltd v CFW Architects
no dispute argument: All In One Building & Refurbishments Ltd v Makers
UK Ltd ; CPL Contracting Ltd v Cadenza Residential Ltd ; J W Hughes Building
Contractors Ltd v GB Metalwork Ltd ; John Stirling t/a M&S Contracts v
Westminster Properties Scotland Ltd Orange EBS Ltd v ABB Ltd ; Watkin Jones
& Son Ltd v LIDL UK GmbH (No.2)
no dispute argument (insufficient time to consider claim): Cowlin Construction
Ltd v CFW Architects; Nolan Davis Ltd v Steven P. Catton
Quality Street Properties (Trading) Ltd v Elmwood (Glasgow) Ltd
successive adjudications: Benfield Construction Ltd v Trudson (Hatton) Ltd ;
Birmingham City Council v Paddison Construction Ltd ; Emcor Drake & Scull
Ltd v Costain/Skanska Joint Venture
two or more disputes: Bothma v Mayhaven Healthcare Ltd
650

Watkin Jones & Son Ltd v LIDL UK GMBH (No.1)
Wrong nominating body: Lead Technical Services Ltd v CMS Medical Ltd
YCMS Ltd v Grabiner
Leave to appeal
Bothma v Mayhaven Healthcare Ltd
RSL (South West) Ltd v Stansell Ltd (CA)
Letter of intent
Limitation
Jim Ennis Construction Ltd v Premier Asphalt Ltd
Matters arising under the contract

Mitsui Babcock Energy Services Ltd v Foster Wheeler Energia OY
William Naylor, t/a Powerfloated Concrete Floors v Greenacres Curling Ltd
NAM/SC; NAM/T
Natural justice
adjudicator using own expert knowledge: Balfour Beatty Construction Ltd v The
Mayor and Burgesses of the London Borough of Lambeth; Rankilor v Igoe (M)
Ltd
Ardmore Construction Ltd v Taylor Woodrow Construction Ltd
651

Borough of Lambeth
BAL (1996) Ltd v Taylor Woodrow Construction Ltd
Boardwell v k3D Property Partnership Ltd
complex disputes: CIB Properties Ltd v Birse Construction Ltd ; William Verry
(Glazing Systems) Ltd v Furlong Homes Ltd
Costain Ltd v Strathclyde Builders Ltd
CSC Braehead Leisure Ltd v Laing ORourke Scotland Ltd
Discain Project Services Ltd v Opecprime Development Ltd (No.2)
Domsalla v Dyason
failure to deal with a defence: Thermal Energy Construction Ltd v AE & E
Lentjes UK Ltd
failure to give reasons: Thermal Energy Construction Ltd v AE & E Lentjes UK
Ltd
(Court of Session)
Kier Regional Ltd v City & General (Holborn) Ltd
legal representationrelevance of: Buxton Building Contractors Ltd v Governors
of Durand Primary School
652

procedural irregularity/unfairness: Macob Civil Engineering Ltd v Morrison
Construction Ltd ; AMEC Capital Projects Ltd v Whitefriars City Estates Ltd ;
(Eastern) Ltd
new claims: AWG Construction Services Ltd v Rockingham Motor Speedway Ltd
procedural errorimpartiality: Woods Hardwick Ltd v Chiltern Air Conditioning
Ltd
procedural fairness: Balfour Beatty Construction Ltd v The Mayor and Burgesses
of the London Borough of Lambeth; Buxton Building Contractors Ltd v Governors of Durand Primary School ; CJP Builders Ltd v William Verry Ltd; CSC
Braehead Leisure Ltd v Laing ORourke Scotland Ltd; Costain Ltd v Strathclyde
Builders Ltd ; Dean & Dyball Construction Ltd v Kenneth Grubb Associates;
Discain Project Services Ltd v Opecprime Development Ltd ; Domsalla v Dyason; London & Amsterdam Properties Ltd v Waterman Partnership Ltd ; RSL
(South West) Ltd v Stansell Ltd ; Try Construction Ltd v Eton Town House Group
Ltd
Rankilor v Igoe (M) Ltd
Try Construction Ltd v Eton Town House Group Ltd (approach in Balfour Beatty
Construction Ltd v The Mayor and Burgesses of the London Borough of Lambeth
approved)
unfairness: M. Rohde Construction v Nicholas Markham-David (No 2)
NEC
Notice of intention to refer (notice of adjudication/referral):
Ltd
653

(Court of Session)
purposes: All In One Building & Refurbishments Ltd v Makers UK Ltd ; Griffin
v Midas Homes Ltd
service: M. Rohde Construction v Nicholas Markham-David (No 2)
validity: Griffin v Midas Homes Ltd
William Verry (Glazing Systems) Ltd v Furlong Homes Ltd
Notice of withholding
Hart Builders (Edinburgh) Ltd v St Andrew Ltd, 69/02, January 10, 2003
must be in writing; must be response to payment application: Strathmore
Building Services Ltd v Greig
Northern Developments (Cumbria) Ltd v J. & J. Nichol.
Norwest Holst Ltd v Carfin Developments Ltd
Reinwood Ltd v L Brown & Sons Ltd
Novation
Oral/written contract (s.107)
Ltd
654

Total M. & E. Services Ltd v ABB Building Technologies Ltd
Overpayment
Party refusing to participate in adjudication
Pay-when-certified
Durabella Ltd v J. Jarvis & Sons Ltd
Pay-when-paid
Durabella Ltd v J. Jarvis & Sons Ltd
Pepper v Hart
North Midland Construction Plc v A E & E Lentjes UK Ltd
PFI
Pre-condition
mandatory mediation: R. G. Carter Ltd v Edmund Nuttall Ltd
655
Professional negligence
Railtrack rules
Receivership
Rectification
remedy available in adjudication (discussed): Christiani and Nielsen Ltd v Lowry
Centre Development Co Ltd
Referral
absence of referral notice; effect: R. G. Carter Ltd v Edmund Nuttall Ltd (No.2)
duty to be open: Shepherd Construction Ltd v Mecright Ltd
late: William Verry Ltd v North West London Communal Mikvah
Repudiatory breach
adjudication provision survives: Connex South Eastern Ltd v M. J. Building
Services Group Plc
Residential Occupier
RIBA appointment
Picardi v Cuniberti
RICS Adjudication Scheme

Cartwright v Fay
656
The Scheme
AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd
Absolute Rentals Ltd v Gencor Enterprises Ltd
Ltd
Hills Electrical & Mechanical Plc v Dawn Construction Ltd
Maxi Construction Management Ltd v Morton Rolls Ltd
Mivan Ltd v Lighting Technology Projects Ltd
para.1(2): Westdawn Refurbishments Ltd v Roselodge Ltd
paras 1, 7 and 19: Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd
paras 1, 9, 23: Quietfield Ltd v Vascroft Contractors Ltd
paras 2(1) and 6(1): IDE Contracting Ltd v R. G. Carter Cambridge Ltd
para.7(2): PT Building Services Ltd v Rok Build Ltd
para.8: R. Durtnell & Sons Ltd v Kaduna Ltd ; Avoncroft Construction Ltd v
Sharba Homes (CN) Ltd
para.9(2) (dispute the same or substantially the same as one previously referred):
Holt Insulation Ltd v Colt International Ltd ; William Naylor, t/a Powerfloated
Concrete Floors v Greenacres Curling Ltd ; Mivan Ltd v Lighting Technology
Projects Ltd ; Prentice Island Ltd v Castle Contracting Ltd ; Sherwood & Casson
UK Ltd v Mackenzie Engineering Ltd ; Skanska Construction
657
UK Ltd v The ERDC Group Ltd; Vision Homes Ltd v Lancsville Construction
Ltd ; Watkin Jones & Son Ltd v LIDL UK GmbH (No.2)
para.17: Britcon (Scunthorpe) Ltd v Lincolnfields Ltd
para.19: AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd ; M. Rohde
Construction v Nicholas Markham-David
para.20: Allen Wilson Joinery Ltd v Privetgrange Construction Ltd ; Carillion
Construction Ltd v Devonport Royal Dockyard Ltd, CA;
Northern Developments (Cumbria) Ltd v J. & J. Nichol; Vaultrise Ltd v Paul
Cook ; Devonport Royal Dockyards Ltd v Carillion Construction Ltd
paras 1(1), 1(3), 8(1), 13(f), 20(1), 22, 23(f): Barr Ltd v Law Mining Ltd
paras 13: Vision Homes Ltd v Lancsville Construction Ltd
paras 7, 8 and 20: Mecright Ltd v TA Morris Developments Ltd
paras 8, 20, 21: David McLean Housing Contractors Ltd v Swansea Housing
Association Ltd
paras 8(2), 10, 13 and 17: Pring & St Hill Ltd v C. J. Hafner
paras 17 and 20: Buxton Building Contractors Ltd v Governors of Durand
Primary School
para.20: Martin Girt v Page Bentley
para.23: Rossco Civil Engineering Ltd v Dwr Cymru Cyfryngedic; Solland
International Ltd v Daraydan Holdings Ltd
para.25(1): Prentice Island Ltd v Castle Contracting Ltd
payment: an omission in a construction contract is made good by importing the
relevant part of the Scheme, not the whole Scheme: Hills Electrical &
Mechanical Plc v Dawn Construction Ltd
section 105(1)(c): Barrie Green v G W Integrated Building Services Ltd (laying
of carpets)
Section 42 of the Arbitration Act

658
Section 101
definition of dwelling: Shaw v Massey Foundation & Pilings Ltd
Section 104
s.104(1): Gibson Lea Retail Interiors Ltd v Makro Self Service Wholesalers
Ltd
s.104(5)statutory blue pencil exercise: Palmers Ltd v ABB Power Construction
Ltd ; Gibson Lea Retail Interiors Ltd v Makro Self Service Wholesalers Ltd; North
Midland Construction plc v A E & E Lentjes UK Ltd
s.104(6): Earls Terrace Properties Ltd v Waterloo Investments Ltd
Section 105
Nottingham Community Housing Association Ltd v Powerminster Ltd
production of food and drink: Hortimax Ltd v Hedon Salads Ltd
s.105(2)(c)(i): Comsite Projects Ltd v Andritz AG
s.105(2) : broad or narrow construction : ABB Power Construction Ltd v Norwest
Holst Engineering Ltd ; North Midland Construction plc v A E & E Lentjes UK
Ltd ; Palmers Ltd v ABB Power Construction Ltd
s.105(2)(c)(i): Conor Engineering Ltd v Les Constructions Industrielles de la
Mediteranee SA
ultimate use of site: Mitsui Babcock Energy Services Ltd v Foster Wheeler
Energia OY ; ABB Power Construction Ltd v Norwest Holst Engineering Ltd
applied.
659
Section 106
Picardi v Cuniberti
Section 107
Ltd
agreement and terms have to be recorded in writing: BSF Consulting Engineers
Ltd v MacDonald Crosbie; RJT Consulting Engineers Ltd v DM Engineering
(N.I.) Ltd (CA)
Hart Investments Ltd v Fidler (s.107(2)(c))
Hatmet Ltd v Herbert
Management Solutions & Professional Consultants Ltd v Bennett
(Electrical)
Services Ltd
meaning of to the effect alleged; whether just agreement or also terms have
to be recorded in writing: Grovedeck Ltd v Capital Demolition Ltd
oral agreement; purpose of s.107; purposive interpretation; meaning of to
the effect
alleged; whether just agreement or also terms have to be recorded in writing:
RJT Consulting
Engineers Ltd v DM Engineering (N.I.) Ltd
660
s.107(4): Gibson v Imperial Homes; PT Building Services Ltd v Rok Build

Ltd
Section 108
at any time: not ambiguous or otherwise permissible to have regard to
Hansard: Connex South Eastern Ltd v M. J. Building Services Group Plc; has
literal meaning: no time-limit within which a party may refer: Connex South
Eastern Ltd v M. J. Building Services Group Plc (CA)
Canary Riverside Development v Timtec International
Connex South Eastern Ltd v M J Building Services Group Plc
Glencot Development & Design Co Ltd v Ben Barrett & Son (Contractors)
Ltd
purpose and statutory intention: see Macob Civil Engineering Ltd v Morrison
Construction Ltd ; Outwing Construction Ltd v H. Randell and Son Ltd ; VHE
s.108(1) and (2): Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd
Trustees of the Harbours of Peterhead v Lilley Construction Ltd
661
Section 109
Section 110
Maxi Construction Management Ltd v Morton Rolls Ltd
Ltd
Section 111
Barry D Trentham Ltd v Lawfield Investments Ltd
Clark Contracts Ltd v The Burrell Co (Construction Management) Ltd
Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd
Hart Builders (Edinburgh) Ltd v St Andrew Ltd
HGCR Act did not apply but notice of withholding relevant in contractual
adjudication: Dumarc Building Sevices Ltd v Salvador Rico
Norwest Holst Ltd v Carfin Developments Ltd
662

Ltd
Woods Hardwick Ltd v Chiltern Air Conditioning
Section 112
Section 113
Aqua Design and Play International Ltd v Kier Regional Ltd
Section 114
s.114(4): Pring & St Hill Ltd v C. J. Hafner
s.114(4): Trustees of the Harbours of Peterhead v Lilley Construction Ltd
Section 115
Service of notice
Set-off
against adjudicators decision: see Adjudicators decisions, above.
equitable: Harwood Construction Ltd v Lantrode Ltd
663
Mediteranee SA
The Highland Council v The Construction Centre Group Ltd
successive adjudications: see Successive adjudications below
Settlement
Bracken v Billinghurst
dispute arising out settlement agreement: Lathom Construction Ltd v Brian Cross
enforcement after settlement of substantive dispute: Bracken v Billinghurst
of adjudication dispute: Lathom Construction Ltd v Brian Cross; Joseph Finney
Plc v Vickers
purported adjudication after settlement: Shepherd Construction Ltd v Mecright
Ltd
Settlement agreement: Able Construction (UK) Ltd v Forest Property Development Ltd
Westminster Building Co Ltd v Andrew Beckingham
Severability
Shimizu Europe Ltd v Automajor Ltd
Shop-fitting
664
Side agreement
Slip rule
Cartwright v Fay
YCMS Ltd v Grabiner
Statutory demand
Statutory interpretation (see also Pepper v Hart)

Stay of execution
Absolute Rentals Ltd v Gencor Enterprises Ltd
Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd (CA)
665

Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd (No 2)
The Mayor and Burgesses of the London Borough of Camden v Makers UK Ltd
M. J. Gleeson Group Plc v Devonshire Green Holding Ltd
Multiconcept Developments Ltd v Abacus (C. I.) Ltd
(Eastern) Ltd
Total M. & E. Services Ltd v ABB Building Technologies Ltd
Wimbledon Construction Co 2000 Ltd v Derek Vago
Stay of proceedings
arbitration clause: Collins (Contractors) Ltd v Baltic Quay Management; Joseph
Finney Plc v Vickers; Macob Civil Engineering Ltd vMorrison Construction Ltd
mediation (agreement to agree): Balfour Beatty Construction Northern Ltd v
Modus Corovest (Blackpool) Ltd ;
pending adjudication: DGT Steel and Cladding Ltd v Cubitt Building and
Interiors Ltd ; Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial)
Ltd
Subsequent proceedings
Citex Professional Services Ltd v Kenmore Developments Ltd
City Inn Ltd v Shepherd Construction Ltd
Successive adjudications
666
Sherwood & Casson UK Ltd v Mackenzie Engineering Ltd

William Naylor v Greenacres Curling Ltd
YCMS Ltd v Grabiner
Summary judgment (CPR Pt 24)

Ltd
Able Construction (UK) Ltd v Forest Property Development Ltd
application to set aside: Nageh v Giddings
BAL (1996) Ltd v Taylor Woodrow Construction Ltd
Balfour Beatty Construction Ltd v Serco Ltd
conditional fee: Multiconcept Developments Ltd v Abacus (C. I.) Ltd
Costs: Allen Wilson Joinery Ltd v Privetgrange Construction Ltd ; Linaker Ltd v
Riviera Construction Ltd ; Gipping Construction Ltd v Eaves Ltd
CPL Contracting Ltd v Cadenza Residential Ltd
Domsalla v Dyason
Mediteranee SA
Gipping Construction Ltd v Eaves Ltd
667
GPN Ltd (In Receivership) v O2 (UK) Ltd

indemnity costs: Able Construction (UK) Ltd v Forest Property Development
Ltd ; Harlow & Milner Ltd v Teasdale
Joseph Finney Plc v Vickers
leave to defend: condition imposed: Allen Wilson Joinery Ltd v Privetgrange
Construction Ltd
LPL Electrical Services Ltd v Kershaw Mechanical Services Ltd
Services Ltd
Nordot Engineering Services Ltd v Siemens Plc
Oral evidence: Able Construction (UK) Ltd v Forest Property Development Ltd
Parsons Plastics (Research and Development) Ltd v Purac Ltd
striking out: GPN Ltd (In Receivership) v O2 (UK) Ltd
668
the test on jurisdiction issue: The Project Consultancy Group v The Trustees of
the Gray Trust
Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd
YCMS Ltd v Grabiner
TeCSA rules
AvB
costs: Deko Scotland Ltd v Edinburgh Royal Joint Venture
Hurst Stores and Interiors Ltd v M. L. Europe Property Ltd
Third Parties (Rights Against Insurers) Act 1930

Third Party Debt Orders

Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd (No 2)
Third Party Rights

Time-limit
contractual time-limit for starting arbitration, after which decision of adjudicator
final (see also ICE above): Lafarge (Aggregates) Ltd v London Borough of
Newham
Under the contract

669
Unfair Terms in Consumer Contracts Regulations 1999

Cartwright v Fay
Domsalla v Dyason
Picardi v Cuniberti
Westminster Building Co Ltd v Beckingham
Waiver of right to adjudicate

Winding-up
Withdrawal of claim
EWHC 1505 (TCC)
Withholding notice
See Notice of withholding
Cases
Edited by Andrew Burr, Kim Franklin, Julian Holloway and Susan
Lindsey from transcripts of the judgments
Scotland: Outer House, Court of Session, Lord McEwan, April 17, 2008, [2008]
CSOH 64
Construction contracts; Notices; Scotland; Withholding payments
Facts: A dispute arose involving the payment provisions contained in a contract to
renovate certain schools in Midlothian. Aedas had requested periodical payments
under the contract, which was met with a refusal to pay by Skanska, which
claimed that it had a large and ongoing fund of contra charges and set-offs, which
were greater than the amounts claimed by Aedas. Aedas applied for summary
judgment against Skanska. Skanska defended the claim and relied upon a number
of withholding notices. Aedas argued that the withholding notices did not meet the
requirements set out in s.111 of the Housing Grants, Construction and Regeneration
Act 1996, contending that there was no attribution on any of the withholding notices
and that these were therefore ineffective. Skanska, however, relied upon the case
of Thomas Vale Construction Plc v Brookside Syston Ltd 1 and argued that the
withholding notices should not be subject to fine textual analysis and that, in
attributing the amount claimed to each ground, Precise accuracy was not required
and an estimate would do. Each of the purported withholding notices issued by
Skanska contained four detailed sheets, providing figures, and a final schedule,
which attributed the whole figure to all the grounds.
Held:
(1) That the withholding notices were valid and had met the requirements set out
in the 1996 Act. Lord McEwan stated (at [16]) as follows:
I have come to the opinion for a number of reasons that the motion cannot succeed.
I am unable to say on what I have seen and heard that the defence is bound to
fail. I do not think the matter can properly be disposed of, only on the counter
notices. It seems to me that where, as here, the documents are referred to for
their terms, issues of fact can arise and this would allow evidence of meetings
and conversations to explain the letters and the events surrounding the notices. For
example, the defenders would be entitled to explain why they were unable to make
any financial attribution against particular terms.
He continued (at [17]) as follows:
If I am wrong about this then I am also of the opinion that the documents
themselves are effective under section 111.
1 Thomas Vale Construction Plc v Brookside Syston Ltd [2006] EWHC 3637, reported at p.675
below.
670
Cases
671
(2) It was further held by Lord McEwan (at [18]) that:

The Statute speaking of each ground says attribution to it must take place. In my
view that also is what the counter notice has done. All the grounds which can be calculated have so been and a global figure debited. That in my opinion is compliance.
The judgment reads as follows:
1. This matter came before me on March 19, on the pursuers motion for summary
decree on six of the conclusions. It relates to work done on contracts to renovate some
schools in Midlothian and in the generality involves the construction of terms of a contract, certain documents and sections of an Act of Parliament. More particularly it relates
to the provision for payment. It seems that the pursuers who asked for periodical payments were met by a refusal since the defenders claimed that they had a large and ongoing
fund of contra set-offs which were always much more than the pursuers claimed. The
pursuers got nothing; hence the motion. At the outset the defenders asked me not to hear
the motion. They said it would be wrong to interpret the Statute outside the Procedure
Roll and against the rules applying to Summary decree. They pointed to the fact that the
Record was still open and that they might adjust in a defence of Personal Bar. The pursuers insisted it proceed and as everyone was ready with clients present, I decided to hear
the motion which lasted a full court day. I had an up to date record. I allowed the pursuers
amendmentwhich related to interest. Mr Mure also provided a written note of argumentwhich I refer to for its terms. The underwritten Opinion was issued in draft to the parties at the end of March. They revised it as they wished or not. It is now in its final form.
2. It is important to notice what is the correct test when considering the issue of summary
decree, which has been recently formulated in the House of Lords in Henderson v
3052775 Nova Scotia Ltd.2 Lord Rodger said3 that summary decree was only appropriate
where a judge, considering the defence advanced along with any other relevant material,
would conclude that the defender was bound to fail. An unlikelihood of success will not
suffice. In my view it is a high test which must be met.
The Housing Grants, Construction and Regeneration Act 1996 provides:
111. - Notice of intention to withhold payment (1) A party to a construction contract may not withhold payment. . .unless
he has given effective notice of intention to withhold payment. . .
(2) To be effective such a notice must specify (a) the amount proposed to be withheld and the ground for withholding
payment; or
(b) if there is more than one ground, each ground and the amount
attributable to it. . .
(emphasis added.)
The parties contract inter alia provides:
11.2 The consultant shall submit to the Building Contractor monthly by the last day
of each calendar month a detailed statement. . .which shall detail the cumulative
value of work executed during the period from commencement of the Services to
the end of the relevant month, showing amounts previously paid, and calculated
based on the sums to which the Consultant considers himself entitled. . .
2
3
Henderson v 3052775 Nova Scotia Ltd [2006] UKHL 21; 2006 S.C. (H.L.) 85.
Henderson v 3052775 Nova Scotia Ltd [2006] UKHL 21 at [19].
672

12.4 Not later than five (5) Business Days before the final date for payment,
the Building Contractor may give a written notice (the effective notice) to the
Consultant which shall specify any amount proposed to be withheld and/or deducted
from the amount notified. . .. the ground or grounds for such withholding and/or
deduction and the amount of the withholding and/or deduction attributable to each
ground. . .
(emphasis added.)
3. I now summarise the oral arguments addressed to me. Mr Mure took me to the case of
Henderson and what was the proper test. He said the present case was one to which the
terms of the 1996 Act applied. Looking at the parties contract no.6/1 of process, he said
the issue was whether the counter notices were effective under cl.12.4 in the contract.
Where there was withholding, the notice had to specify an amount, grounds and then an
attribution to each ground. Counsel next looked at the Statute pointing to the scheme for
adjudication, the rights to stage payments and the careful mechanism for determining
these (ss.104 to 110). He drew my attention to the need for any counter notice to be
effective under s.111. He invited my attention to various passages in Melville Dundas
Ltd (In Receivership) v George Wimpey UK Ltd 4 as to the philosophy of the Act and to
the judgment of Goff J. in Humber Oils Terminal Trs Ltd v Hersent Offshore 5 albeit on
different wording.
4. Mr Mure then took me to the six counter notices. He looked at nos 6/64, 6/63 and 6/62,
linking these three. He looked at the letter, the attachments and the nine listed grounds.
He argued that there was no attribution on any of those counter notices and that they
were not effective. He pointed out the similarity of figures in each notice. Turning to nos
6/59 to 6/61 and linking these, he accepted that they were in slightly different terms and
gave some more detail. However, he said that although there appeared to be attribution,
the sum often exceeded what was admittedly due. Also, there was no specification of
time or place. Counsel then asked me to look at nos 6/67 and 6/68, a document, he said,
which demonstrated that the defenders could have afforded a great deal of specification
of any complaints they had. He looked at various passages but said all of this came
too late. Looking at the Open Record, counsel noted that the only defence was one of
retention, and that was recently adjusted in. He ended by inviting me to award interest
at the higher rate allowed under the Late Payment of Commercial Debts (Interest) Act
1998 and relevant recent order (2002 No 336).
5. Mr Young asked me to refuse the motion. He referred me to Reinwood Ltd v Brown
and Sons Ltd 6 and accepted that the Act was concerned with cash flow, stage payments
and set-off abuse. He said that none of the counter notices should be subjected to fine
textual analysis (Thomas Vale Construction). They were not addressed to lawyers but
to contract managers and others who were aware of what was happening on site in an
ongoing contract concerning several places. Grounds and amounts had been specified
and that was enough.
6. As before, counsel looked at nos 6/59 to 6/61. The retention figures would be bound
to change as the contractor went on. Some could be calculated and others not. Even
if the attributed figures appeared arbitrary out of a bigger retention figure that was
still proper attribution. Precise accuracy was not required and an estimate would do.
Even if the attribution exceeded the sum due that was merely advance notice that larger
sums were having to be retained. In any event, in each of those counter notices there
was attribution. Turning to nos 6/62 to 6/64, he accepted that there was no specific
attribution of proportions. Where total retention vastly exceeded any amount claimed,
4 Melville Dundas Ltd (In Receivership) v George Wimpey UK Ltd [2007] UKHL 18; 2007 S.C.
(H.L) 116.
5
Humber Oils Terminal Trs Ltd v Hersent Offshore Ltd (1981) 20 B.L.R. 16.
6 Reinwood Ltd v L Brown & Sons Ltd [2008] UKHL 12.
Cases
673
detailed attribution was neither necessary nor realistic. Counsel pointed out the difference
between the Act and the contract when it became each ground.
7. Finally, let me say a word or two about the cases cited. Melville Dundas was a case
which dealt with the 1996 Act and payments against the background of receivership and
the contract being determined. The case is thus not in point for present purposes. It does,
however, stress the need for clarity when interim payments are withheld. That is against
the background of the machinery of adjudication. Section 111 is also intended to strike
at set-off abuse7 and promote confidence in cash flow.8 Plainly, these expressions on
the purpose behind the Act are helpful and I must follow them.
8. Reinwood related to the building of houses in Manchester. The facts concerned an
application for an extension of time, non completion and withholding. They were thus
not in point for present purposes. The case reinforces as did Melville that on interim
payments, parties should know in advance where they stand.
9. Humber Oils Terminal Trs Ltd v Hersent Offshore 9 was referred to as an example of
what did not constitute a good notice under a repairing contract. The plaintiffs owned
an oil terminal at Immingham. The French defendants and their subcontractor undertook
repair work inter alia a damaged berthing dolphin. This complex operation is described
by the judge.10 Problems arose when welding cracked. The defendants sought substantial
extra payments from the supervising engineer due to the necessary additional work. The
issue was whether they had given notice as the contract required. That contract required
specific information to be given as to the reason for the extra work and expected delays.
Though two letters were sent, neither individually nor together did they constitute the
notice required. This case is an example of a very strict construction being given to a
contract, of course not in the same terms as the present one. Had the French companys
letters given its best estimate on cost, the notice might well have been held to the good.11
Thomas Vale Construction is a decision of a single judge. It concerned building houses
in Leicester. Problems arose and both sides made cross claims. These disputes matured
into a claim for payment and the defendants serving a notice to withhold. The notice
differs markedly from any I have to consider here. The deputy judge gave the notice a
broad construction.12
10. I am now going to look at some of the productions which are relevant to this case.
What the pursuers have to send to obtain payment is called a detailed statement of
request for payment. If the defenders are going to deny payment they have to send a
document entitled a notice of intention to withhold payment. For shorthand, I am going
to call these the notice and the counter notice. In the argument before me no issue
arose as to these being timeous.
11. I was not asked to look at any of the notices in detail but I do observe that over
the relevant period they are couched in the most general terms and seek payments for
professional services. They are typed (possibly computer generated) not signed and
their author is not stated. They are marked for the attention of a different person in the
defenders organisation.
12. Of the six relevant counter notices it is to be observed that they are letters sent to
the pursuer in Glasgow. They have a square box stamp indicating that a director of the
pursuers has seen it and that someone (by initials) is to take action. The letters usually
have about four detailed attached sheets giving figures and other details. The letters are
7
Melville Dundas [2007] UKHL 18 per Lord Hope at [42].

Melville Dundas [2007] UKHL 18 per Lord Neuberger (dissenting) at [64].
9 Humber Oils (1981) 20 B.L.R. 16.
10 Humber Oils (1981) 20 B.L.R. 16 at 2223.
11
Humber Oils (1981) 20 B.L.R. 16 at 28.
12 Thomas Vale Construction [2006] EWHC 3637 at 43.
8
674
mostly signed by a Mr MacLeod who is an operations director of the defenders. I am

going to look at them in groups of three as did both counsel. Numbers 6/59 to 6/61
(August to October) contained the standard letter of withholding with attachments. The
withheld amount is on sheet 2 showing net, VAT, then a gross figure. Two are the same
and one markedly higher in the productions. Any sums due are calculated on the value
of the work to date less previous payments. There then follows more paperwork, with
nine set-off charges in general terms and valuations against four. These almost amount
to one million pounds and greatly exceed the sum claimed in any particular notice (or
indeed all of these added together). The last sheet details the nine grounds and attributes
sums against some of them (where calculated). These, when placed against the sums
due, either equal (6/59) them or substantially indicate a debit (6/60 and 6/61).
13. At this stage I pause to observe that I will appreciate the problems caused to both
parties by all of this. The pursuers wish for clarity demanded by the Act. Both parties can
take adjudications at any interim stage. The defenders who say they have a substantial
(and ongoing) set off may not want to part with money. In any commercial matter there
is always the risk of insolvency (see, e.g. Melville Dundas) or delays and cash flow
difficulties (as happened to the subcontractor in Humber Oils). I believe any adjudicator
would hear evidence about the (disputed) counter notices, ask questions and would
not have to make a decision based solely on the documents. The judge in Humber
Oils certainly considered matters beyond the letters. If proof were allowed in this case
evidence could be led.
14. The other counter notices 6/62 to 6/64 have to be looked at in the same way but
with this important difference. The ongoing set off figure had increased by the end of
the year to over one million pounds. However, the schedule showing attribution, in each
production, merely attributes the whole figure to all the calculated grounds (five out of
nine). It is the same figure in each counter notice. As I have already said, this sharply
raises the question of whether the counter notice has made an effective attribution.
15. What then is to be done in this situation? I have to apply the Henderson test and
ask myself whether the defence as it exists is bound to fail. Do I have to do this only on
the documents before me, or is it proper to consider that some evidence one day may
have to be led on the point? Do I have to decide in this motion whether the counter
notices are effective within the meaning of the Act? I have to take no account of the
possibility that the defenders may table other defences. That I think is clear.
16. I have come to the opinion for a number of reasons that the motion cannot succeed.
I am unable to say on what I have seen and heard that the defence is bound to fail. I do
not think the matter can properly be disposed of, only on the counter notices. It seems to
me that where, as here, the documents are referred to for their terms, issues of fact can
arise and this would allow evidence of meetings and conversations to explain the letters
and the events surrounding the notices. For example, the defenders would be entitled to
explain why they were unable to make any financial attribution against particular terms.
17. If I am wrong about this then I am also of the opinion that the documents themselves
are effective under s.111. I think the matter is clear for items 6/59 to 6/61. In these,
sufficient attribution has been made against five of the enumerated grounds. That in itself
is enough to hold that it cannot be said that the defence is bound to fail.
18. As to the last three, 6/62 to 6/64, what has been done is to debit the whole attribution
against any money due. The contract demands attribution to each ground. It does not ask
for any apportionments and, in my view, it is a competent way to proceed by debiting
all sums. The Statute speaking of each ground says attribution to it must take place.
In my view that also is what the counter notice has done. All the grounds which can be
calculated have so been and a global figure debited. That in my opinion is compliance.
19. In the result the motion fails though the points were properly taken and well argued.
Needless to say had I been able to find for the pursuer I would have awarded interest at
the higher rate.
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For the pursuers: Mure (instructed by DLA Piper).

For the defenders: Young Q.C. (instructed by Dundas and Wilson LLP).
Thomas Vale Construction Plc v Brookside Syston Ltd

High Court of Justice, Queens Bench Division, Birmingham District Registry,
Technology and Construction Court, H.H. Judge Frances Kirkham, sitting as a
High Court Judge, November 14, 2006, [2006] EWHC 3637
Construction contracts; Damages; Delay; Notices; Withholding payments
Facts: Thomas Vale (the contractor) applied under Civil Procedure Rules (CPR) Pt
8 for a declaration that a notice to withhold payment was invalid. Brookside Syston
Ltd (Brookside) was a single venture company incorporated in order to purchase
and develop a site located in Leicester. Brookside and Thomas Vale had entered into
a contract for the design and construction of 24 high quality apartments, including
associated infrastructure, external works, drainage and statutory services. During the
project, various problems occurred, which resulted in the completion date not being
met. Both parties initiated claims against each other, with Brookside claiming delay
damages for non-completion and Thomas Vale claiming that practical completion
had been achieved. The parties eventually agreed a way forward, with an expert
determining that, although practical completion had been achieved, there were a
number of snagging items outstanding, which Thomas Vale agreed to make good.
Meanwhile, another adjudication commenced, arising from a dispute over the final
account and, following this, a further adjudication, in which Brookside claimed an
outstanding balance from delay damages payable pursuant to a previous agreement.
Finally, Thomas Vale issued an interim application for payment, which resulted in
Brookside serving a notice to withhold payment.
Thomas Vale contended that the notice to withhold was invalid, relying upon four
grounds. One of the grounds was that the damages claimed did not flow from the
breach.
Held: That this contention should be rejected. Judge Kirkham stated (at [42] and
[43] of her judgment) as follows:
TVCs case is that BSLs ground for withholding is in truth a failure by TVC to
use reasonable endeavours to remedy the defects in accordance with the programme
or a failure to remedy the defects in a reasonable time. Thus, the damages claimed
by BSL do not flow from the breach.
I reject TVCs argument as artificial and contrived. It does not seem to be
appropriate to construe with withholding notice as nicely as TVC seek to do. In
my judgment it would be inappropriate to apply fine textual analysis to a notice
which is intended to communicate to the other party why a payment is not to be
made.
The judgment reads as follows:
Introduction
1. This is a CPR Pt 8 application by the claimant (TVC) for a declaration that a notice to
withhold payment, dated August 17, 2006 and served by the defendant (BSL) on August
18, 2006, is invalid.
676
2. TVC is a building contractor. BSL is a single venture company incorporated in order

to purchase and develop a site located at Brook Street Syston, Leicester and construct
apartments.
3. I have witness statements from Mr Reeves (a director of TVC) and from Mr Babla (a
Chartered Quantity Surveyor and director of BSL).
Background
4. On August 31, 2004, BSL and TVC entered into a written contract. The contract is
a Joint Contracts Tribunal (JCT) Standard Form of Building Contract with Contractors
Design, 1998 edn, incorporating amendments 15 and further amended by the employers
requirements (the building contract). The contract price is 1,945,124 and the
contractual completion date is May 16, 2005. The works are defined as the Design
and construction of 24 No. high quality apartments complete, including associated
infrastructure, external works, drainage and statutory services. Mr Bablas firm, Aditi
Babla Partnership, is the employers agent under the building contract.
5. Various problems were experienced on the project and the May 16, 2005 completion
date was not met. By the spring of 2006 both parties were making claims against the
other: BSL claimed delay damages for non-completion; TVC left the site and claimed
that practical completion had been achieved. Cross adjudications were commenced.
6. The parties in April met to attempt to resolve their differences amicably. Although the
parties did not finally resolve their differences, they did agree a way forward. This was
recorded in a Supplemental Agreement dated April 7, 2006. It was expressly stated that
the Supplemental Agreement would be supplemental to the Building Contract, that the
terms of the building contract remained binding and that, in the case of inconsistency,
the supplemental agreement would prevail. The supplemental agreement includes the
following provisions:
Clause 1 provided that an expert would be appointed to determine whether the
works were practically complete and to set out what snagging works remained.
The parties agreed that the experts determination would be temporarily binding
on them.
Clause 2 provided that, once the expert had made his determination, TVC was
to prepare and issue a programme to carry out remedial and snagging work and
to use reasonable endeavours to comply with that programme.
Clause 3 noted that TVCs liability for late completion was agreed in the sum of
220,000, payable upon agreement or determination of the final account pursuant to
the Building Contract.
By cl.6, TVC was required to submit its draft final account within four weeks of the
date of the Supplemental Agreement, and, thereafter the parties were to attempt to agree
the final account.
Clause 7 included the following: Neither party shall be obliged to make any
payment to the other, whether by way of payment for the Works, damages for
late completion or the release of retention until such time as the Final Account
is either agreed between the parties or determined pursuant to the Building
Contract.
7. In due course an expert, Mr John Riches, was appointed pursuant to cl.1 of the
Supplemental Agreement. In his decision dated June 2, 2006, Mr Riches observed:
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. . . the development is of high quality and is as good as the best I have seen in
many years. The efforts that have been made in the design and workmanship and
the selection of goods and materials reflect a high quality development.
He determined that practical completion had been achieved by May 22, 2006, but that
there were a significant number of snagging items outstanding (over 600 items).
8. On June 9, 2006, TVC submitted a programme which showed that they would make
good the defects and complete the snagging items by the end of June 2006. In their
covering letter, TVC said:
. . . where there may be the necessity to replace a front door, and in particular we
cite apartment 15, the procurement times are such that delivery will extend beyond
the 21 day period and as such separate arrangements will have to be made to fix
this within the defects liability period.
They went on to say that they would begin work on June 12.
9. Meanwhile, on May 8, 2006, TVC submitted their draft final account. BSLs solicitors
replied on May 17, 2006, setting out BSLs position. It seemed that no agreement of the
final account was going to be possible. BSL commenced an adjudication, in which they
sought a declaration as to the value of the final account. The adjudicator, Mr Ribbands,
having rejected TVCs jurisdictional arguments, published his decision on June 30, 2006.
He declared, amongst other matters, that the value of the final account was 1,890,311.49.
10. On May 26, 2006, BSL commenced a further adjudication, claiming the outstanding
balance of 57,425 from the delay damages payable pursuant to cl.2 of the Supplemental
Agreement. By his decision dated August 17, 2006, Mr Smith, the adjudicator, awarded
this sum to BSL plus interest. By consent, judgment has been entered for this amount
of money.
11. Mr Keith Roberts, a building surveyor, inspected the building on behalf of BSL on
June 26, 2006 and prepared a report dated July 5, 2006. His report was limited to the
finishing of exposed steel frame, creaking ceilings in some rooms, the condition and
finishing of stairwells and leaks associated with shower screens. He concluded that there
were defects in all of these areas.
12. On June 28, 2006, TVCs solicitors wrote to BSLs solicitors, on the question whether
liquidated damages were payable, including the following:
. . . The obvious intention discussed at the settlement meeting, is that the payment
at that time would be a balance, taking account of all the sums due. Why else
would the Final Account be the trigger mechanism? The intention was that sums
due to my client would be set off against the agreed liquidated damages amount.
Accordingly I invite you to:
1. confirm acceptance of Mr Riches determination and that the retention
may be set off against sums otherwise due to your client when the Final
Account is agreed/determined;
2. confirm what, if any, values your client considers may be properly set off
against the Final Account by reference to outstanding snags.
13. On July 24 or 25, 2006, TVC issued interim application for payment number 21. In his
statement prepared for this application, Mr Babla says that he was not sure whether TVC
was actually entitled to make that application for payment. He nevertheless considered
the application, made an adjustment in respect of retention, and certified 57,425. He
says he did so on the basis that TVC were due that money when work was complete,
678
which included the making good of all defects. Mr Babla wrote to TVC by letter dated
August 1, 2006 in relation to interim application number 21 including the following:
We note that your application equates to 100% of the value of all works. So TVCs
assertion must be that all works are 100% complete.
He went on to refer to cl.30.2B 1.1 of the Building Contract (which refers to the total
value of work properly executed) and said that BSL were considering whether TVC
had proceeded to remedy and complete the defects. He went on: Without prejudice to
the above we enclose a copy of our Interim Certificate number 21. . . That valuation,
issued on August 1, 2006, confirmed that the sum of 57,425 was due from BSL to
TVC. The final date for payment was August 22, 2006.
14. BSL commissioned a report from Mr Jonathan White, a chartered quantity surveyor.
He reported on August 16, 2006. He concluded that there were a number of items of
defective and incomplete work in almost all of the apartments and expressed the opinion
that the total cost of remedying defects and completing work would be 168,144.
15. On August 17, 2006, BSL served a notice to withhold in the sum of 57,425. Mr
Whites report was attached to that notice. This is the witholding notice the subject of
this application.
TVCs case
16. TVC say the notice to withhold is invalid and rely on four grounds. TVCs case is:
1. The sums which BSL seek to withhold represent damages in respect of the cost
of making good defects, yet the ground relied on in the notice is failure by TVC
to use reasonable endeavours to remedy the defects in accordance with the June
9 programme or failure to remedy defects in a reasonable time; accordingly, the
damages claimed do not flow from the breach.
2. The damages sought include work on items not in Mr Riches snagging list.
3. BSL is in effect seeking to go behind Mr Ribbands determination of the
final account by seeking to deduct matters that were required to be within a
determined final account.
4. BSLs set-off is in respect of a disputed and untested counterclaim and thus not
permissible.
BSLs case
17. BSLs case is that no money is payable to TVC at this stage. A final account
is not settled until the contractor has properly attended to all defects. Mr Ribbands
determination of the final account did not trigger an entitlement to payment of money at
that stage. Even if it were the case that a sum were payable to TVC, the contract permits
BSL to serve a withholding notice. In a CPR Pt 8 application where evidence is untested,
it is not possible for the court to decide that the facts relied on in the withholding notice
are incorrect. The BSL valuation dated August 1 reflected Mr Ribbands decision and
the question whether the works had been properly completed was expressly reserved.
Relevant contract clauses

18. In the Building Contract the employer is defined as BSL and the contractor as
TVC.
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19. Clause 16 of the Building Contract deals with practical completion and a subsequent
defects liability period. It is common ground that the defects liability period ends in May
2007.
20. By cl.30.1.1.1, interim payments are to be made by BSL to TVC in accordance with
alternative B in Appendix 2. By cl.30.3.1.2 (which applies because alternative B applies),
applications for interim payment can be made up to the day named in the Employers
statement of Practical Completion or to within one month thereafter. There is no such
statement of practical completion but there is a finding by Mr Riches (in effect) that
practical completion had taken place by May 22, 2006.
21. Clause 30.3.1.2 goes on to provide that thereafter (i.e. after expiry of one month
from practical completion) application for interim payment can be made (i) as and when
further amounts are due to the Contractor (ii) after the expiry of the Defects Liability
Period named in Appendix 1 or (iii) on the issue of the Notice of Completion of Making
Good Defects (whichever is the later).
22. Clause 30.3.3 provides that, within seven days from his receipt of an application
for interim payment, the employers agent must issue a written valuation specifying the
amount of the payment proposed to be made and (amongst other matters) that:
. . . the final date for payment pursuant to a written valuation shall be 21 days
from the date of issue of the written valuation.
23. By cl.30.3.4, not later than five days before the final date for payment of an amount
due under cl.30.3.3:
. . . the Employer may give a written notice to the Contractor which shall specify
any amount proposed to be withheld and/or deducted from the due amount, the
ground or grounds for such withholding and/or deduction and the amount of
withholding and/or deduction attributable to each ground.
24. Clause 30.5 contains provisions for submission of a final account and a mechanism
for adjustment of the contract sum. Clause 30.5.5 provides that the final account and
final statement shall, within one month from whichever of the following is the latest
date:
end of the defects liability period;
the day named in notice of completion of making good defects;
date of submission of the final account:
. . . be conclusive as to the balance due between the parties in accordance with
the Final Statement except to the extent that the Employer disputes anything in that
Final Account or Final Statement before the date on which, but for the disputed
matters, the balance would be conclusive.
25. Clause 30.6 provides a mechanism for a notice of withholding to be served by the
employer:
30.6.1 Not later than 5 days after the Final Statement becomes conclusive
as to the balance due between the Parties in accordance with clause
30.5.5, or after the Employers Final Statement becomes conclusive
as to the balance due between the Parties in accordance with clause
30.5.8, the Employer shall give a written notice to the Contractor which
shall specify the amount of the payment proposed to be made in respect
of any balance stated as due to the Contractor from the Employer in
the Final Statement or in the Employers Final Statement.
680

30.6.2 The final date for payment of the said balance payable by the
Employer to the Contractor or by the Contractor to the Employer
as the case may be shall be 28 days from the date the Final
Statement becomes conclusive as to the balance due between the
Parties in accordance with clauses 30.5.5, or after the Employers
Final Statement becomes conclusive as to the balance due between
the Parties in accordance with clause 30.5.8. Not later than 5 days
before the final date for payment of any balance to the Contract the
Employer may give a written notice to the Contractor which shall
specify any amount proposed to be withheld and/or deducted from
such balance due to the Contractor, the ground or grounds for such
withholding and/or deduction and the amount of withholding and/or
deduction attributable to each ground.
Discussion
26. Mr Riches said that the work was practically complete when he visited the site on
May 22. Mr Collie submits that, because neither party knew when practical completion
had taken place, and given that no money would be payable until the final account was
determined, it is entirely consistent with the contract read as a whole that TVC should
apply for payment once the final account was determined.
27. TVC rely on the proposition that BSL did not expressly ask Mr Ribbands to determine
the final account as at June 2007, the date when the defect liability period ends. Mr
Ribbands decided that the value of the final account is 1.89 million. He did not say
that that would be the final account sum assuming all work is completed and snagged.
28. Mr Collie relies on the fact that Mr Babla did issue an interim payment certificate.
Although Mr Babla now seeks to say that payment would not become due until work is
complete, his actions in issuing the certificate and then the withholding notice indicate
that he considered payment was due.
29. I accept Mr Hendersons submission that the Supplemental Agreement provided for a
twin track approach: TVC would attend to snagging items and the parties would proceed
to deal with the final account.
30. Clause 2 of the Supplemental Agreement provided that damages for delay would be
payable upon determination of the final account, but there is no express provision for
immediate payment of any other sum once the final account had been determined. Clause
7 provides only that neither party shall be obliged to make any payment to the other
until the final account is agreed. In other words, the supplemental agreement defines
an earliest date for payment of the final account sum but does not state that sums will
in fact be due on that date. As Mr Henderson submits, most of the mechanisms in the
Building Contract survive, including those in the clauses to which I have referred. The
provisions of the Supplemental Agreement do not sweep away cl.30.5.5 and the other
final account provisions in the Building Contract.
31. In my judgment, on a true construction of the contract (i.e. the Building Contract and
the Supplemental Agreement), the parties had not agreed that payment would become
due once the final account had been determined. By the Supplemental Agreement, the
parties had expressly agreed when delay damages were to be paid but took a different
approach to payment of the final account sum, i.e. agreeing only the earliest date for
payment. This suggests that the parties did not intend that determination of the final
account would trigger a right to immediate payment.
32. The final passage of the letter from TVCs solicitors dated June 28, 2006 (which
I have quoted earlier) seems to me to indicate that, at that stage, TVC proceeded on
the understanding that BSL would be entitled to set off sums in respect of outstanding
snagging against the final account sum:
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Accordingly I invite you to:. . . 2. confirm what, if any, values your client considers
may be properly set off against the Final Account by reference to outstanding
snags.
At that stage, the parties were awaiting Mr Ribbands decision as to the final account
sum and both knew that TVC still had work to do.
33. It is unlikely that the parties intended that TVC be entitled to immediate payment
for work which had not been properly executed.
34. The surviving clauses in the Building Contract make it clear that no payment is due
until the latest of the three events set out in cl.30.3.1.2. As the latest of these events has
not yet occurred, payment is not yet due.
35. In all the circumstances, in my judgment, the fact that the final account sum has
been determined does not mean that payment of that sum is due.
36. Mr Babla indicated in his letter of August 1, 2006 that he proceeded on the assumption
that TVCs application assumed that all works were 100 per cent properly executed, but
that was not in fact the position: TVC still had work to complete. It seems to me that
the fact of the issue of an interim certificate (on the basis of that express proviso that
TVC still had to remedy and complete work and that the certificate had been issued
without prejudice to BSLs position on that) does not displace the parties contractual
rights under the payment provisions of the Building Contract.
37. In my judgment, on a true construction of the Building Contract and Supplemental
Agreement, and notwithstanding the issue of the interim certificate, TVC was not entitled
to payment in August of the certificated sum.
38. However, even ifcontrary to my viewthe final account determination had entitled
TVC to make an application for payment, the provisions of both cl.30.3.4 (in the case
of an interim payment) and cl.30.6.2 (in relation to the final account) make it clear that
BSL was nevertheless entitled to serve a withholding notice. The provisions of those
clauses were not displaced by the supplemental agreement.
39. The matters contained in the reports of Mr Roberts and Mr White have not been
tested. There is no mechanism for doing so within the CPR Pt 8 procedure which TVC
have chosen. As Mr Henderson submitted, it is not open to me to conclude that the facts
relied on in the withholding notice are incorrect. For the purposes of this hearing only,
I proceed on the assumption that those reports are accurate.
40. I turn now to the four grounds on which TVC rely.
TVCs ground 1
41. The notice to withhold is said to be served pursuant to s.111 of the Housing Grants,
Construction and Regeneration Act 1996 and cl.30.3.4 of the Building Contract. It refers
to the facts that, on June 9, 2006, TVC had prepared a programme for completion of
remedial work by June 30, 2006 and had failed to make good, remedy and/or complete
the work on the snagging lists. It alleged that that failure amounted to a breach of cl.2 of
the Supplemental Agreement and cl.16.1 of the Building Contract. The ground on which
57,425 is sought to be withheld is as follows:
The Employer is entitled to withhold a sum for the cost of making good the
outstanding defects and completing incomplete work (pursuant to the contract
or its common law rights). The Employer relies on the independent report of
Jonathan White, a quantity surveyor, which demonstrates that the cost of making
good/remedying outstanding defects and completing incomplete work will exceed
the amount of the Interim Certificate.
682
42. TVCs case is that BSLs ground for withholding is in truth a failure by TVC to
use reasonable endeavours to remedy the defects in accordance with the programme or
a failure to remedy the defects in a reasonable time. Thus, the damages claimed by BSL
do not flow from the breach.
43. I reject TVCs argument as artificial and contrived. It does not seem to me to be
appropriate to construe the withholding notice as nicely as TVC seek to do. In my
judgment it would be inappropriate to apply fine textual analysis to a notice which is
intended to communicate to the other party why a payment is not to be made. It is clear
that BSL withhold payment because (as TVC do not challenge) TVC have not completed
work or remedied defects. If it were the case that TVC had attended to all incomplete
or defective work, so that BSLs complaint was in reality about delay in attending to
snagging items, then there might be some force in TVCs argument. However, the reality
is that TVC have not yet remedied defects and completed outstanding work.
44. BSL is holding retention money of about 55,000. However, given Mr Whites
estimate of the cost of completing outstanding work, it would in my judgment produce
an inequitable result if the final account balance were to be paid now when TVC had
not yet completed their work.
TVCs ground 2
45. TVC complain that the damages sought to be withheld include sums in respect of
items not on Mr Riches snagging list.
46. BSL say that it is clear from Mr Riches list that, in respect of a significant number
of items, he concluded that if an item were an agreed variation then it was not a defect;
otherwise it was BSLs case is that most, if not all, of those items were not agreed
variations and thus, on Mr Riches analysis, a defect. The evidence on this point has not
been tested.
47. BSL accept that they rely, in the withholding notice, on a very small number of
defects (worth a total of about 2,000) which are not on Mr Riches list. They rely
on the figure identified by Mr White (168,144) as the cost of remedying defects and
completing work. In the context here, I accept BSLs description of those items in the
withholding notice which are not on Mr Riches snagging list as being de minimis.
48. It is not possible, in CPR Pt 8 proceedings, to test the evidence. The available
evidence suggests that, even if one deducted the estimated cost of items not in Mr
Riches list, there may still be a substantial cost of remedying defects, and that cost may
be in excess of the sum now claimed by TVC. The fact that a small number and value
of items on Mr Whites list are not on Mr Riches list does not render the withholding
notice invalid.
TVCs ground 3
49. TVC say that Mr Ribbands determined the final account. BSL seek to go behind
that determination by seeking to deduct in respect of matters which were required to
be within a determined final account, namely deductions for defects not required to be
remedied by TVC. By cl.30.5.3.4, the final account is deemed to include any deduction
in relation to defects under cl. 16.2 and cl.16.3. Had BSL wanted to make any deduction
in relation to outstanding snagging, it should have raised this within the final account
procedure. It is not open to BSL to set off against the final account a sum which should
have been included in the final account. In this respect, Mr Collie relies on the judgment
of Ramsey J. in William Verry Ltd v Camden LBC.1
1
William Verry Ltd v Camden LBC [2006] EWHC 761 (TCC).
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50. BSL point out that TVC were obliged, pursuant to the Supplemental Agreement, to
complete the snagging work. TVC have failed to do this work.
51. I am not persuaded by TVCs arguments. They rely on the final account determination
as giving rise to a right to immediate payment. As I have set out above, in my judgment
mere determination of the final account does not trigger an obligation to pay. In any
event, TVC is unable to overcome the contractual provisions which expressly entitle
BSL to give TVC a withholding notice no later than five days before the final date for
payment of any balance due to TVC. Even if there had been an entitlement to payment,
BSL served its withholding notice in time.
TVCs ground 4
52. TVC say that BSL are, in effect, attempting to set off a disputed and untested
counterclaim against a sum found by an adjudicator. I reject that argument. First, Mr
Ribbands did not find that a sum was due. His finding did not result in TVC being
entitled to payment. Secondly, it seems to me in any event incorrect to characterise
BSLs claim to be entitled to withhold sums as a disputed and untested counterclaim.
Mr Riches has found a very large number of snagging items. TVC do not suggest that
they have completed work. Mr Whites report and that of Mr Roberts suggest that TVC
have failed properly to complete work and to carry out remedial work possibly to a
substantial value.
Conclusion
53. TVC are not entitled to a declaration that the withholding notice dated August 17,
2006 is invalid.
For the claimant: Peter Collie (instructed by Charles Russell LLP).
For the defendant: Simon Henderson (instructed by HBJ Gateley Waring LLP).
Information
Adjudication; Construction contracts; Payments
Introduction
As long ago as March 2004, Gordon Brown announced to the House
of Commons that the Government would be undertaking a review of the
provisions of the Housing Grants, Construction and Regeneration Act 1996
(the Construction Act). In his statement, he highlighted the problem:
Following concerns expressed by the construction industry on unreasonable delays in payment, the government will review the operation of the
adjudication and payment provisions in the [Construction] Act to identify
what improvement can be made.
Five years on, the Local Democracy, Economic Development and Construction
Bill (the Bill) is undergoing its final considerations in the House of Lords. The
Bill has not had an easy ride, with many questioning why such a reform was
necessary so soon after the original Construction Act came into force. It was also
hit by controversy when Lord ONeill, President of the Specialist Engineering
Contractors Group, was forced to withdraw his proposed amendments to the
Bill after he became embroiled in the cash for amendments scandal. However,
the Bill appears to be weathering the storm and is expected to receive Royal
Assent later this year or early next year.
The Bill will make amendments to Part II of the Construction Act, rather than
replacing it wholesale, meaning that the changes will be clear to anybody who
is already familiar with the existing Act. The amendments made by the Bill fall
broadly into two categories:
1. changes to payment procedures under the Construction Act; and
2. changes to the statutory adjudication procedure.
This article will examine each of these categories in turn.
Payment provisions
The adequate mechanism

Those familiar with the current Construction Act will know that s.110 states
that every construction contract must provide an adequate mechanism for
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685
determining what payments are made and when they are to be paid. The contract
must also set out the final date for payment of any sum due. The Construction
Act permits the parties to agree how long the period is to be between the
date on which a sum becomes due and the final date for payment. This basic
premise has not been changed by the Bill. What the Bill has sought to do
is to clarify what is meant by an adequate mechanism for the purposes of
the Construction Act. The new subss.(1A)(1D) to s.110 replace the current
s.110(2). Section 110(1A) clarifies that payment under the contract may not
be linked to, or conditional upon performance under another contract. In other
words, this extends the prohibition of so-called pay when paid provisions to
cover other forms of conditional payment.
Although pay when paid clauses are already prohibited under the current
Construction Act, the industry has in recent years developed an alternative
mechanism to circumvent the prohibition, which has become known as the
pay when certified provision. Whilst not explicitly stating that the contractor
would not pay its subcontractors until it had been paid, the pay when certified
provision states that the subcontractor would not be paid until the contractors
payment had been certified for payment by the employer. The enforceability
of this mechanism was cast into doubt by the decision of the High Court in
2006 in Midland Expressway Ltd v Carillion Construction Ltd (No.1),1 which
held such pay when certified mechanisms to be contrary to the intention of
the Construction Act. The new s.110(1A) closes this loophole by outlawing
the pay when certified provision. This is of obvious benefit to subcontractors
and others further down the supply chain. However, as parties are still free to
agree the period between the due date and the final payment, it is foreseeable that
contractors will seek to extend the final date for payment under their subcontracts
to a date well beyond that on which a payment becomes due, and is indeed paid,
under the main contract. This would allow any disputes relating to payment
further up the chain to be resolved before subcontractor payments become due,
but would rather undermine the intention of the new provisions.
There are some exclusions to this pay when paid premise. The new s.110(1B)
clarifies that the s.113 exemption for upstream insolvency is preserved. The
new s.110(1C) states that the pay when paid prohibition does not apply to
contracts where the construction operations are carried out entirely by a third
party under a separate contract. An example would be a management contract,
or an agreement for lease where the landlord is obliged to carry out works for
which the landlord will engage a contractor under a separate building contract.
It does seem, however, that legislators have missed an opportunity to dispel all
doubt in relation to these pay when paid clauses. In particular, those familiar
with Private Finance Initiative (PFI) contracts will know that the whole structure
of payment flow down and equivalent project relief clauses rely on the ability
to link payments under the construction contract and subcontracts lower down
the chain to those made under the project agreement. The Bill is an opportunity
missed, either to exclude PFI subcontracts completely from the provisions of
the Construction Act, or otherwise to tackle the difficulties raised by the PFI
structure in the context of the Act. The ambiguity will no doubt allow lawyers
the opportunity to continue to invent novel mechanisms for maintaining the
1
Midland Expressway Ltd v Carillion Construction Ltd (No.1) [2006] EWCA Civ 936.
686
integrity of PFI payment structures, based upon dressed up versions of pay

when paid.
Payment notices
The Bill replaces the current payment procedures in the Construction Act with
a new process. Although not radically different from the existing provisions,
the new sections seek to provide greater clarity and provide the payee with
the option to serve a payment notice on the payer if the payer fails to
do so.
Under both the existing Construction Act and the proposed amended Act, a
construction contract can provide for either the payer or the payee to issue
a payment notice, which must be no later than five days from the due date
for payment of that sum under the contract. The notice must specify (i) the
amount that the party considers due and (ii) the basis on which the sum is
calculated. The Bill makes clear that the payer can delegate this responsibility
to a specified person such as a Contract Administrator or Employers Agent.
The notice should be issued even where it is considered that the amount due
is zero. If the contract terms fail to comply with these statutory provisions,
then the Scheme for Construction Contracts2 will apply, albeit that an updated
version of the Scheme has not yet been produced.
One useful addition to the payment notice provisions is the introduction of a
payees notice in lieu. Under the payer-led procedure, where the employer is
the designated party issuing the notice, if the employer fails to give notice
to the contractor specifying the amounts due within five days from the due
date, the contractor may serve its own notice on the employer. It is important
that this contractors payment notice is given promptly, because the final date
for payment is postponed by the number of days that it took the contractor
to issue its notice following the employers failure. It is even more important
that the contractor remembers to serve a notice, because otherwise sums will
not become due and the contractor will not be entitled to exercise its right
to suspend performance. What is unclear and ambiguous from the drafting of
the new section is that it is only at the end of the fifth day that the employer
can be in default for not serving its notice. Therefore a contractors notice can
only be served at the earliest on the sixth day, which must push the final date
for payment out by an extra day. This seems to be the logical reading of the
section, albeit the drafting is not conclusive. Another example of the Bills
drafting shortcomings is that it is unhelpfully silent on whether it is possible to
specify a negative amount in the payers notice in the event that there has been
an earlier overpayment to the payee.
Although the Bill is not comprehensively drafted, measures such as the
introduction of a payees notice in lieu have served to fill in some of the gaps
left by the drafting of the original Act. Some critics claim this new measure
will only encourage employers to be lazy, but the Bill does at least provide the
contractor with a remedy in the event of a defaulting employer where currently
there is none.
2
The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649)
687
Withholding notices and/or adjustments to the notified sum

A new s.111 replaces the old section entirely and states that, notwithstanding
any dispute over the sum payable, the payer must pay the notified sum on
or before the final date for payment specified in the notice. If, as is often the
case, the circumstances are not so simple and the notified sum is disputed,
there is a mechanism for adjusting the sum. The familiar withholding notice
provisions have been replaced and the payer (or its specified person) may give
to the payee a notice of its intention to pay a lesser amount than the notified
sum. Rather than simply state the deductions and/or withheld amounts, this
notice must show the basis upon which the revised sum is calculated. This
appears to shift the burden to the payer to demonstrate that its figures add up
and should make the process more transparent, although on analysis the new
section probably only really reflects what already happens in practice and is
no more burdensome. The adjustment to the notified sum (or what will surely
become known as the s.111 notice) must be given by the payer, not later than
the prescribed period, which can be agreed by the parties or, under the Scheme,
is seven days.
A new s.111(10) clarifies the situation which arose in the House of Lords case
of Melville Dundas Ltd (In Receivership) v George Wimpey UK Ltd 3 that monies
can still be withheld, notwithstanding that a s.111 notice has not be served, in the
event that the payee becomes insolvent during the prescribed period for payment.
This right is not automatic, however, and adequate provisions must be expressly
drafted into the contract. Again, the gremlin of poor draftsmanship appearsthe
Bill talks about the payee becoming insolvent after the prescribed period,
when the only sensible reading of the section is that the insolvency must be
during the prescribed period because a notice served after the prescribed
period would, by its very nature, not be a valid notice.
Right to suspend performance

Amendments to the current s.112 of the Construction Act provide a right for the
contractor/payee to suspend performance in the event of a non-payment by the
employer/payer. Such right to suspend ceases when payment is made in full.
The Bill enhances and clarifies the existing right of the contractor to suspend
in three ways. First, it allows suspension of part (not necessarily the whole) of
the works, which is an obvious improvement to resolving disputes during the
project. Secondly, the new s.112(3A) makes the defaulting party liable to pay
the suspending party a reasonable amount in respect of costs and expenses
caused by the suspension. Lastly, the numbers of days suspended and the time
lost as a consequence of the suspension is disregarded in relation to the contract
programme. That is to say that the contractor would be granted an extension of
time which would include time taken to remobilise. These amendments make
suspension a more powerful self-help remedy for the contractor but also aid
both parties in allowing suspension in part, rather than a complete down
tools.
Melville Dundas Ltd (In Receivership) v George Wimpey UK Ltd [2007] UKHL 18.
688
Statutory adjudication procedure
Contracts in writing
Currently, in order for the provisions of the Construction Act to apply, a
construction contract must be in writing or at the very least evidenced in
writing. Since the coming into force of the Construction Act in May 1998,
this has been interpreted very restrictively, and consequently many contracts
were held to fall outside of the Act. The 2001 Court of Appeal decision in RJT
Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd 4 established
that literally all of the contract must be in writing for the Construction Act to
apply and the absence of any written term could lead to its provisions not being
applicable.
The current s.107 of the Construction Act will be wholly repealed by the Bill,
meaning that all construction contracts, whether agreed orally or only partly
evidenced in writing, will be caught by the Construction Act. This will allow
many more disputes to be referred to adjudication and will avoid the common
contract in writing jurisdictional challenge. Under adjudication, decisions are
required within 28 days of a referral, subject to any extensions agreed by the
referring party, and the decision is binding and enforceable, with very limited
grounds to challenge the decision. The parties are generally free to agree the
rules of the adjudication, the only caveat to this being that the Bill requires any
contractually agreed adjudication provisions to be in writing. In the absence of
such written agreement, the Scheme for Construction Contracts will apply to
proceedings. Much will hinge on the amendments to the Scheme, a review of
which is expected soon.
However, opening up adjudication to oral contracts will create uncertainties.
It is likely that disputes in adjudication will to a much greater degree turn on
oral evidence. One could question whether the adjudication process is suited
to disputes involving a detailed scrutiny of oral evidence, with the courts
having established procedures for scrutinising and assessing oral evidence that
adjudication has not. One could equally argue, however, that even now many
disputes dealt with in adjudication turn on disputed issues of fact, which involve
both parties witnesses setting out their recollections in witness statements.
Therefore the statutory changes will simply widen the scope of issues that turn
on oral evidence to include the terms of the contract itself.
Despite the inclusion of oral contracts within the auspices of the new
Construction Act, it will still be the responsibility of the referring party to
demonstrate that a contract exists at all. Jurisdictional challenges to whether the
dispute can be heard will be common in cases of purported oral contracts. Recent
Technology and Construction Court cases have demonstrated a relatively strict
approach, as illustrated by Peter Sheridan and Dominic Helps article which
appeared in the March edition of this journal.5
4 RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd [2002] EWCA Civ
270.
5 Peter Sheridan and Dominic Helps, Letters of Intent and Section 107 (2009) 24 (3) Const.
L.J. 221.
689
Adjudication costs
Many of the amendments in the Bill appear to benefit those lower down the
supply chain. One example is the introduction of a new s.108A, which seeks
to reduce the practice of parties pre-agreeing who will bear the costs of an
adjudication, which was highlighted in Bridgeway Construction Ltd v Tolent
Construction Ltd.6 This practice benefited the stronger party, with subcontractors
often agreeing to bear the brunt of the costs regardless of the eventual outcome
of the adjudicationan obvious disincentive to adjudicate. In the Tolent case,
the referring party was obliged by its contract to bear all of the legal costs
and experts fees incurred by both parties to the adjudication. The new s.108A
seeks to protect this weaker party by specifying that any attempt by the parties
to agree the costs of an adjudication (including the fees and expenses of the
adjudicator) will be ineffective unless such agreement is made in writing after
the adjudication notice is served. This puts the parties in the position of knowing
the circumstances of the dispute prior to agreeing a potentially onerous costs
obligation, but it does not enable the parties to pre-agree provisions such as the
adjudicator having the power to award the successful party its costs or even to
agree an equal split of the adjudication costs.
The Bill did not go so far as to retain earlier amendments which would
have introduced a new s.108B, empowering the adjudicator to determine the
reasonableness of any agreed cost allocation made in accordance with s.108A.
This was considered a step too far.
Adjudicators power to make corrections

A new s.108(3A) addresses the circumstances of Bloor Construction (UK)
Ltd v Bowmer & Kirkland (London) Ltd,7 stipulating that contracts must
include a provision in writing permitting the adjudicator to correct any clerical
or typographical errors in the adjudicators decision. The decision in Bloor
Construction was further clarified by YCMS Ltd (t/a Young Construction
Management Services) v Grabiner,8 which stated that any slip must be
corrected promptly by the adjudicator and only to correct an error, not to readdress the adjudicators mind to the basis of his or her decision. However,
the proposed new section is silent on the time limit for correcting such errors,
giving rise to criticisms that the amendment is not only unnecessary (the position
already having been decided by case law), but even less satisfactory than the
existing position.
Conclusion
The whole process of reviewing the Construction Act a mere decade after its
inception was always going to be tricky and meeting the expectations of those
who had legitimate grievances about the original Act was a tall order. As the
6 Bridgeway Construction Ltd v Tolent Construction Ltd April 11, 2000, District Registry
(Liverpool).
7
Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000] B.L.R. 314.
8 YCMS Ltd (t/a Young Construction Management Services) v Grabiner [2009] EWHC 127
(TCC).
690
Bill weaves its way through the various consultations, debates, amendments,
Commons Readings and Lords Readings towards its final destination of Royal
Assent, the demands for a satisfactory finished article are increasing, whilst the
waves of criticism are not subsiding.
At one point, the proposed new payment provisions were branded as rhythmic,
expressive, poetic and incomprehensible, prompting Lord Borrie to table
amendments effectively suggesting that the legislators start from scratch and
draft much simpler provisions. Subcontractors are saying that the Bill does not
go far enough, whilst employers are worried that the amendments are simply
increasing the number of hoops they need to jump through when employing
their project team.
Whilst the Bill seeks to address some of the issues raised by a decade of case
law on the Construction Act, some are already seeing it as a missed opportunity
to clarify the grey areas created by the original Act. Many of these grey areas
had already been addressed by the common law and therefore the argument
is that the Bill adds nothing new. Further, it casts the existing positions from
cases such as Melville Dundas, RJT Consulting and Bloor Construction into
new doubt as to whether they are still applicable in the context of the Bills
amendments.
The final form of the new Act has yet to be decided, but all involved will be
hoping that, after such a long initiation, the new Construction Act has a longer
shelf life than the 1996 vintage.
David Cordery,
Solicitor, Maxwell Winward
Technology and
Construction Law Reports
TECHNOLOGY AND CONSTRUCTION COURT
Christopher Clarke J.: August 18, 2009

[2009] EWHC 2139 (TCC)1
Claim forms; Commercial arbitration; Construction contracts; Extensions

of time; Service
H1
H2
H3
H4
Practice and procedureExtension of time for service of claim formWhether

pending arbitration against another party a good reasonEffect of indication
by court official before judges decision.
The claimant employer was the owner and developer of 25 Southampton
Buildings/11 Staples Inn (the premises), formerly the Patent Office. On
January 18, 2003, a crane on a site adjacent to the premises carried out an
operation which was said by the employer to have caused a water main in the
highway to fracture, resulting in damage on the premises. On January 16, 2009,
the employer issued claim forms against the defendant adjoining site crane
subcontractor in negligence and nuisance and against the defendant insurers
under a contractors all risks and buildings insurance policy. Before then the
employer had written no letter before action; nor had it complied with the
Pre-Action Protocol for Construction and Engineering Disputes. The time for
serving the claim form would expire on May 17. On May 8, City issued two
ex parte applications for extensions of time for service of the claim forms until
January 2010. The applications were made on the basis that a pending arbitration
with the contractor employed on the premises included claims arising out of and
relevant to the claims. On Friday May 15, the employers solicitors telephoned
a member of the case administration unit of the Technology and Construction
Court (TCC), who said that the application for an order to extend time for
service of the claim form would be treated as being in time as the mid-term
break would delay the assigned judges deliberations upon it. In consequence
the employers solicitors decided not to serve the claim form. On June 1, time
was extended for the service of the claim form in both actions until June 16.
The subcontractor and the insurers applied to set aside the order.
Held, discharging the order and setting aside the service of the claim forms:
(1) It was not appropriate to give permission to extend time for service of
the claim forms: the fact that it was arguably more appropriate from
1
Paragraph numbers are as assigned by the Court.
T123
T124
a case management point of view for the particulars to be delayed did

not justify not serving the claim forms themselves.
H5
(2) The fact that the employer had been given to understand that there
would be a short extension pending the judges consideration of the
papers did not justify extending the time for service. Whatever order
was to be made would depend, as the solicitors should have realised,
on what the judge decided after studying the relevant material, and the
order was being sought ex parte and thus vulnerable to being set aside.
H6 Manus McMullen appeared for the claimant employer, instructed by Clyde &
Co.
Jeffrey Terry appeared for the defendant, instructed by DWF LLP.
Christopher Clarke J.
1. This is an application by the defendants in both actions to set aside an order
made by Ramsey J. on June 1, 2009 by which he extended the claimants time
for serving the claim form in the actions.
2. City & General (Holborn) Ltd (City), the claimant, is the owner and developer
of 25 Southampton Buildings/11 Staples Inn (the premises), which was
formerly the patent office. From 2001 onward, works (the works) were being
carried out at the premises by Kier Regional Ltd (Kier), which traded as
Wallis, pursuant to a contract (the building contract) with City. The building
contract was in the Joint Contracts Tribunal (JCT) 1998 standard form. The
contract sum was 11,650,000. By cl.20, City was responsible for all risks
insurance and insurance of existing structures.
3. Clause 25 of the building contract stated that on the occasion of one of the
specified relevant events, Kier was entitled to an extension of time in certain
circumstances. Such an extension would extend the contract completion date and
prevent City from deducting liquidated and ascertained damages (LADs) for the
extended period. Clause 26 of the building contract stated that if progress of the
works were disrupted or delayed by reason of one of the specified matters, Kier
was entitled in certain circumstances to claim in respect of loss and expense
caused by the period of disruption and/or delay.
4. On January 18, 2003, a crane on a site adjacent to the premises carried
out an operation which is said by City to have caused a water main in the
highway to fracture. The crane subcontractor was Ainscough Crane Hire Ltd
(Ainsclough), the defendant in claim HT-09-26 (Action 26). In Action 26,
City claims against Ainscough in negligence and nuisance for the loss and
damage it claims to have suffered as a result of the consequent disruption of
the works.
5. In the claim HT-09-27 (Action 27), City claims against the defendant insurers
under a Contractors All Risks and a Buildings Insurance policy on the grounds
that they are liable to indemnify City against these losses. In addition, City
claims in that action an indemnity arising out of two different events:
1. flooding to the basement of the Premises in May 2002;
2. pseudomonas infection of the water supply which is said to have been
first detected on May 17, 2004.
It is not clear whether this infection resulted from the events of May 2002 or
January 2003 or because of some other unrelated and unidentified cause.
6. Kier began an arbitration against City in which it claimed that the incident with
the crane and a large number of other alleged Relevant Events had caused
T125
it delay, loss and expense and additional cost to compete the development. It
claimed an extension of time and that it was excused from paying liquidated
damages, and entitled to variations and damages itself. City does not accept
these claims. In particular it does not accept that something such as the fracture,
occurring on the highway and not on the premises, is capable of constituting a
relevant event. Nor does it accept that the relevant events relied on were causes
of delay.
7. Prior to March 2007 there had been discussions between City and Royal & Sun
Alliance (RSA) about insurance claims in respect of the three incidents. On
March 27, 2007 RSA wrote to City responding to the claims. They offered the
following:
24,022.06 in response to a claim for 552,291.63 in respect of the
burst water main in January 2003; on the basis that the relevant policy
covered the reasonable direct cost of remedial work plus preliminaries
and overheads in respect thereof; but not additional costs of construction
and the like;
25,000 in respect of water damage to the basement in response to
a claim now presented as 1,197,638.89. This was the limit of cover
for loss minimisation and prevention under the property policy. The
contention was that there was no damage as required by both policies;
Nothing in respect of the pseudomonas claim on the basis that it had not
been reported promptly and that various adjudications had taken place
without insurers knowledge.
8. On January 16, 2009 City issued claim forms in each action. Before then City
had written no letter before action; nor had it complied with the Pre-Action
Protocol for Construction and Engineering Disputes. The time for serving the
claim form would expire on May 17.
The applications
9. On May 8 City issued two ex parte applications for extensions of time for
service of the claim forms until January 2010. The applications were made on
the basis that the pending arbitration with Kier included claims arising out of
and relevant to the claims in Actions 26 and 27, including the extent to which
City was unable to deduct liquidated and ascertained damages from sums owed
to Kier and of the loss and expense owed to Kier as a result of the flood
and pseudomonas infestation at the premises. It was said that it would not be
possible for City to establish with any certainty the proper extent of the loss
and damage arising under or pursuant to the claim until the arbitrators award
and that it would therefore be premature to serve the claim on the defendants
at this time.
The telephone conversation of May 15
10. Ms Starey, an associate with Clyde & Co, says in her witness statement that on
Friday May 15, with time about to expire, she telephoned the Court and spoke
to a member of the case administration unit of the TCC. He told her that Citys
application for an order to extend time for service of the claim form:
. . . would be treated as being in time as the mid-term break would delay
Mr Justice Ramseys deliberations upon it. Mr Justice Ramsey J would
return from his break on Monday 18th May and . . . would grant [City]
T126
a short extension in any event to cover the period of his deliberations

whether or not City received the extension requested so as not to unfairly
prejudice City for the delay due to Ramsey Js absence.
In consequence she decided, after consultation with the supervising partner, not
to serve the claim form.
11. On May 19, the case administrator wrote:
Mr Justice Ramsey has seen the applications in these claims for the time
for service of the Claim Form to be extended until 1 January 2010.
He is concerned that the defendants to the claim may not have been given
notice of the claim and that the relevant pre-action protocols may have
been completed: see para 6 to the Pre-Action Protocol for Construction
and Engineering disputes. He would ask for clarification as to the
position.
In addition, he considers that on the facts of the case the most appropriate
procedure and would be that the claim form to be served (with any necessary short extension) and for proceedings to be stayed after the defendants
have acknowledged service, while the proceedings are preserved, subject
to any application by the Defendants.
12. On May 20, Ramsey J.s clerk emailed Clyde & Co on his behalf informing
them that in the light of three Court of Appeal cases that the judge had been
reviewing on another matter,2 he was now of the opinion that it would not
be appropriate to grant the extension, and inviting them to consider the three
cases.
13. On May 22, Clyde & Co wrote to the TCC, for the attention of Ramsey J.,
a long letter in which they confirmed that the defendants had not been given
notice of the claim nor had the pre-action been protocol followed. They also
responded to the May 20 email with a discussion of the authorities. They invited
the Court, if it was not minded to grant the long extension sought, to grant the
extension contemplated by the letter of May 19.
14. On June 1, Ramsey J. extended time for the service of the claim form in both
actions until June 16. The draft and actual orders did not contain, as they should
have done, a statement of the right of the defendants to apply to set it aside:
Civil Procedure Rule (CPR) 23.9 (3). The claim forms, together with Particulars
of Claim, were served on June 15, 2008.
The Particulars of Claim
Action No.26
15. The Particulars of Claim in Action No.26 pleaded cll.25 and 26 of the building
contract. City said that Kier had claimed that the fractured water main was a
relevant event and a matter that delayed the progress of the works, and had
claimed an extension of time and loss and expense under the contract and
damages and various sums as variations. I refer to these types of claim as the
Kier averments. It was said that City did not accept these claims which were
live issues in the ongoing arbitration.
2 The matter is unknown; but it is likely to have been Imperial Cancer Research Fund v Ove
Arup & Partners Ltd [2009] EWHC 1453 (TCC) (see para.26 below) in which the argument took
place on May 21.
T127
16. Pararaphs 1822 read as follows:

18. The First Defendants and/or Second Defendants negligence
and/or nuisance has caused the Claimant to suffer loss and damage,
including but not limited to:
(1) any additional sums due for variations and/or as part of Kiers
Final Account and interest;
(2) loss and expense or damages payable to Kier pursuant to the
Building Contract and interest;
(3) loss of ability to deduct Liquidated and Ascertained Damages
(LADs) from the sums owed to Kier under the Building
Contract.
19. Pending the outcome of the arbitral proceedings, the Claimant
cannot say how much it expects to recover from the Defendants.
20. In the event that the Arbitrator finds sums to be due to Kier by
reason of the insured events set out above, the Claimant claims
damages from the Defendants in respect of the loss and damage
suffered.
21. The Claimant is also entitled to and claims damages in respect of
the following loss and damage suffered.
(1) the cost of the redesign and repair work to the Property,
including architects surveyors and consulting structural and
mechanical and electrical engineers fees necessarily incurred
in the repair reinstatement or replacement of the Property;
(2) loss of rent due to delayed completion;
(3) additional finance costs for the period of delay.
22. The quantum of these losses will be particularised in due course.
17. Citys claim was for damages and interest.
Action No.27
18. The Particulars of Claim in the second action also pleaded cll.25 and 26 of the
building contract. The insurance contracts were then pleaded. City asserted that
during the works there was damage to the property as defined in both policies
in the form of the fractured water main, the flooding to the basement and the
pseudomonas infestation.
19. The pleading then set out Kiers claims in respect of the fractured water main
made in the arbitration as summarised in para.15 above. It went on to refer to
the discovery of flooding in around May 2002 in the basement room where the
boiler room for the refurbished building was to be located and the discovery
on May 17, 2004 of pseudomonas in the water system. The pleading recorded
that the Kier averments had been made in respect of all three incidents.
20. The pleading then recorded the arbitration between Kier and City and (in [41]
claimed that City was entitled to be indemnified under the CAR policy in
respect of the following sums to the extent that they had been caused by the
three insured events in the following terms:
41. The Claimant is entitled to be indemnified by the First and Second
Defendants under the CR Contract in respect of the following sums, to the
extent that the same have been caused by the three insured events:
T128

(1) any additional sums due for variations and/or as part of Kiers
Final Account and interest, such sums being a recoverable cost
of repair, reinstatement and/or replacement under the terms of the
CAR Contract;
(2) any sums payable to Kier for loss and expense pursuant to the
Building Contract and interest, such sums being a recoverable
cost of repair, reinstatement and/or replacement under the terms
of the CAR Contract;
(3) loss of ability to deduct Liquidated and Ascertained Damages
(LADs) from the sums owed to Kier under the Building
Contract being sums foregone or incurred in to avoid or diminish
the Damage.
21. The pleading then continued in very similar terms to Action No.26 as
follows:
42. Pending the outcome of those proceedings, the Claimant cannot
say how much it expects to recover from the Defendants.
43. In the event that the Arbitrator finds sums to be due to Kier by
reason of the insured events set out above, the Claimant claims
an indemnity and/or damages from the Defendants in respect of
the loss and damage suffered.
44. The Claimant is also entitled to and claims an indemnity or
alternatively damages from the First and Second Defendants in
respect of the following sums, each sum being a recoverable
cost or repair, replacement and/or reinstatement under the CAR
Contract:
(1) the cost of the redesign and repair work to the Property,
including architects surveyors and consulting structural and
mechanical and electrical engineers fees necessarily incurred
in the repair reinstatement or replacement of the Property
Insured consequent upon Damage thereto, such sums being a
recoverable cost of repair, reinstatement and/or replacement
under the terms of the CAR Contract;
(2) loss of rent due to delayed completion and additional finance
costs for the period of delay being sums forgone or incurred
in to avoid or diminish the Damage.
45. The quantum of the losses will be particularised in due course.
22. There then followed a claim under the buildings insurance policy in which City
claimed on much the same basis as under the CAR policy.
23. Citys claim was expressed to be for a declaration of entitlement to an indemnity
under the two polices and alternatively damages.
24. As is apparent from this history, the applications for an extension of time were
made (a) before the expiry of the time prescribed for service of the claim form;
and (b) without notice to any of the defendants.
CPR 7.6.
25. CPR 7.6. provides:
T129
Extension of time for serving a claim form

7.6
(1) The claimant may apply for an order extending the period for
compliance with rule 7.5.
(2) The general rule is that an application to extend the time for
compliance with rule 7.5 must be made
(a) within the period specified by rule 7.5;. . .
(3) If the claimant applies for an order to extend the time for
compliance after the end of the period specified by rule 7.5 . . .. . .
the court may make such an order only if
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with
rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the
application.
(4) An application for an order extending the time for compliance
with rule 7.5
(a) must be supported by evidence; and
(b) may be made without notice.
26. The principles upon which the Court acts in respect to applications to extend
time have been the subject of substantial appellate consideration in Hashtroodi
v Hancock ; Steele v Mooney; Hoddinott v Persimmon Homes (Wessex) Ltd and
Collier v Williams; and further summary at first instance e.g. by Ramsey J. in
Imperial Cancer Research Fund v Ove Arup & Partners and Gross J in F G
Hawkes (Western) Ltd v Beli Shipping Co Ltd.3
27. I do not propose to attempt a yet further summary of the applicable principles.
It is convenient to take the summary made by Ramsey J. in Imperial Cancer:
9 (1) The general rule is that a claim form must be served within 4
months after date of issue: CPR 7.5(1);
(2) In relation to an application under CPR 7.6.(2), that rule does
not impose any threshold condition on the right to apply for
an extension of time. The discretion to extend time should be
exercised in accordance with the overriding objective identified
in CPR 1.1: Hashtroodi at [17], [18] and [19].
(3) In order to deal with an application under CPR 7.6(2) justly it
will always be relevant for the court to determine and evaluate
the reason why the claimant did not serve the claim form within
the specified period: Hashtroodi at [22]
(4) The preconditions in CPR 7.6(3) do not apply to 7.6(2) but those
requirements will always be relevant to the exercise of discretion
3 Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 W.L.R. 3206; Steele v Mooney [2005]
EWCA Civ 96; [2005] 2 All E.R. 256; Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA
Civ 1203; [2008] 1 W.L.R. 806 and Collier v Williams [2006] EWCA Civ 20; Imperial Cancer
Research Fund [2009] EWHC 1453 (TCC) and F G Hawkes (Western) Ltd v Beli Shipping Co Ltd
[2009] EWHC 1740 (Comm).
T130

on an application under CPR 7.6(2) but the fact that the conditions
are not satisfied is not necessarily determinative of the outcome
of a CPR 7.6(2) application: Collier at [87];
(5) The matters which the Court may take into account include the
following in relation to the reason why the Claimant has not
served the claim form within the specified period:
(a) Whether the claim has become statute barred since the date on
which the claim form was issued is a matter of considerable
importance.
Where there is doubt as to whether a claim has become timebarred since the date on which the claim form was issued, it is
not appropriate to seek to resolve the issue on an application
to extend the time for service or an application to set aside
an extension of time for service. In such a case, the approach
of the court should be to regard the fact that an extension of
time might disturb a defendant who is by now entitled to
assume that his rights can no longer be disputed as a matter
of considerable importance when deciding whether or not
to grant an extension of time for service: Hashtroodi at [18]
citing Zuckerman on Civil Procedure (2003) at paragraph
4.121; Hoddinott at [52].
Where the application is made before the end of the four
month period the fact that the claim is clearly not yet statute
barred is a relevant consideration: Hoddinott at [52], [53].
(b) Whether before the expiry of the four month period the nature
of the claim was brought to the attention of the defendant:
Hoddinott at [57].
(c) Whether a party was in a position where it could not determine
whether the claim had real prospects of success and could
not responsibly proceed against the defendant without an
expert report which was delayed awaiting a response to proper
requests for information from the defendants solicitors:
Steele at [33].
(6) In considering whether to set aside an order granting an extension
of time it is not a relevant consideration that the claimant has
proceeded in reliance of the extension of time granted on the ex
parte application: Hoddinott at [48] to [50].
(7) In relation to the reason why the claim form has not been served,
then:
(a) Where the Claimant has taken all reasonable steps to serve
the claim form, but has been unable to do so, the Court will
have no difficulty in deciding that there is a very good reason
for the failure to serve: Hashtroodi at [19].
(b) If the reason why the Claimant has not served the claim
form within the specified period is that he (or his legal
representative) simply overlooked the matter, that will be a
strong reason for the Court refusing to grant an extension of
time for service: Hashtroodi at [20].
(c) Whilst the view could be taken that justice requires a short
extension of time to be granted even when the reason for the
T131
failure to serve is the incompetence of the claimants solicitor,

especially if the claim is substantial, there are limitation
periods and a claimant has four months in which to serve the
claim form, which does not have to contain full details but
only a concise statement of the nature of the claim: Hashtroodi
at [21].
28. Mr McMullan for City submits:
that there was good reason for the claim form not to be served within
the prescribed period;
that the authorities make a distinction between cases in which failure to
serve in time is the result of incompetence or, at least, failing by a party
or their solicitors, when an extension is unlikely, and those (such as, he
submits, the present) where that cannot be said, where an extension is
likely; and
that City was entitled to rely upon what it was told about a short
extension being granted in any event;
and that time for service of the claim forms should, accordingly, be
extended.
The claimants submissions
Good reason?
29. The main hearing in the arbitration took place between January 7 and March
17, 2009. Closing submissions were exchanged on May 15. At issue in the
arbitration is who, as between Kier and City, is responsible for the delays that
occurred to the project, being 80 weeks delay out of a total period of 150
weeks. City does not accept that it is responsible for any of the delay. Until the
arbitration is completed City cannot say whether it is responsible for any delay
and what its losses are, or whether it has any. This applies to all its losses. In
those circumstances the request for an extension of time was not as a result of
any failure by City or its solicitors. It was a result of the practical difficulty
presented by the slow progress of the arbitration.
The distinction in the authorities
30. The authorities show that permission to extend the time has been refused where
the claimant served the proceedings at the wrong address; where the claimant
waited for the defendant to nominate solicitors (Hashtroodi ) or respond to a
letter of claim (Leeson v Marsden [sub nom Collier]); or where the claimant
was waiting on an expert who was instructed late (Glass v Surrendran [sub nom
Collier]). All these, Mr McMullan submits, are examples where the solicitors
have been at fault. Here, by contrast, the position is different. It was no fault
of City or its advisors that City could not say what its losses were. The present
situation is more akin to Steele v Mooney in which time was extended where
the claimant lacked an experts report without which it was inappropriate for it
to launch proceedings.
The message from the Court
31. It would be wrong, Mr McMullan submits, to set aside Ramsey J.s order in
circumstances where the Court had indicated that a short extension would be
T132
granted in any event so that City was not unfairly prejudiced. If that indication
had not been given, service would have taken place in time.
Discussion
32. City would have had no difficulty in serving the defendants with the claim
forms issued on January 16, 2009 before May 17, just as it had no difficulty
doing so afterwards. Both defendants have registered offices in England and
Wales.
33. The reason put forward in the application for seeking an extension was because
it would not be possible to establish with any certainty the proper extent of the
loss and damage arising under the claim until the arbitration was concluded.
I accept that, insofar as the claim depended upon the liability of City to Kier
under the building contract, the amount of the loss could not be determined
until the award. But I am far from convinced that that applies to all the loss
pleaded in the Particulars of Claim in the two actions. These appear to make
a distinction between losses whose resolution depends on the outcome of the
arbitration (pleaded at paras 1820 of the Particulars of Claim in Action 26
and paras 4143 and 4850 of the Particulars of Claim in Action 27); and
those that do not so depend but which await further particularisation (see paras
2122 of the Particulars of Claim in Action 26 and paras 4445 and 5053 in
Action 27). Claims in the latter category are not expressed, like those in the
former category, as arising in the event that the Arbitrator finds sums to be
due to Kier but as sums to which City is also entitled, the quantum of which
will be particularised in due course: see paras 43/44 and 50/51 in Action 27.
Mr Morris witness statement in support of the applications for permission to
extend time did not contend that the claims were wholly contingent.
34. Mr McMullan submitted that the claims in the latter category were all dependent
on the outcome of the arbitration in that, if Kier lost, it would be responsible
for them. In respect of the cost of the redesign and repair work to the property
incurred by City, it is not evident that that must be so. Even if it is, that would
not prevent a claim against Ainscough and the insurers, in respect of which there
might be rights of contribution and subrogation. In relation to the claim for loss
of rent and additional finance, Mr McMullan submitted that they would be
covered by the liquidated damages (at apparently the rate of 50,000 per week)
that Kier would have to pay. I do not see why the existence of a liquidated
damages claim in the building contract is a defence to a claim against the
crane subcontractors for negligence or against the insurers under the insurance
policies. The Particulars of Claim do not suggest that any of these three claims
are contingent on the outcome of the arbitration. Further, these claims are for
sums particulars of which are not dependent on the arbitrators award. In any
event, even if all the claims were contingent on the outcome of the arbitration,
City could still claim a declaration of its right to be indemnified against any
loss flowing from the occurrence of that contingency. A claim for an indemnity
is the primary claim in the Particulars filed in respect of the insurance claims.
35. There was no difficulty in drafting Particulars of Claim in either action. They
accompanied the claim form. It is not suggested that the Particulars served are
defective. They were settled by leading and junior counsel. It was pointed out
that that would have involved cost; but even so the expense cannot have been
out of the ordinary. In any event the fact that the drafting of Particulars of
Claim involves cost is not, by itself, a ground for not providing them.
T133
36. From the point of view of case management there would be something to be
said for postponing the production of Particulars of Claim in both actions until
the award in the arbitration was produced. This, if desirable, could have been
achieved by agreement, or, if necessary by an application to the Court, that the
time for service of the Particulars should be postponed until then or for a stay.
An alternative course, which Ainscough and the insurers and the Court might
have preferred, was that there should be a pleading out of Citys claims, since
they had been the subject of no previous letter before action or compliance with
the relevant protocol, on the basis that particulars could be given when the award
was made. That was and is contemplated as being in the autumn. The arrival of
the arbitrators award would thus coincide with the sort of time at which any
request for further information might have been expected to be complied with.
37. Whatever the position in relation to the Particulars of Claim, there was in my
judgment no good reason why the service of the claim form should have been
delayed, let alone delayed until 2010: see Collier v Williams.4 The limitation
period in respect of the first and second incidents had expired by January 19,
2009. The claim forms were issued very shortly before the expiry of the period
in respect of the second incident. The rules require service within four months, a
not ungenerous period in respect of a company registered in England and Wales.
38. The effect of extending the time for service of the claim forms will be to
deprive the defendants of a limitation defence which would be available
to them if permission was refused and City was compelled to issue fresh
proceedings; and would disturb a defendant who is by now entitled to assume
that his rights can no longer be disputed. That is of particular significance in
the present case where service of the claim forms was preceded by no letter
before action or other intimation of suit. I accept that a claim had been made
against the insurers to which they had responded in 2007. But there is no
evidence that anything happened to move any claim forward after that.
39. Further, City is not in the position of someone who could not, or could not
properly, take the step of serving proceedings as was the case in Steele. They
could easily have done so. In Steele the claimants solicitors did not know
whether the claimant had a claim with real prospects of success and, if so,
against which defendant, until they received an experts report. That report
was delayed because the first defendant had not responded to proper requests
for his clinical notes. Dyson L.J. observed that the:
. . . situation was quite different from that which often arises where the
claimant seeks an extension of time for service of the claim form because
he or she wants further time to prepare a schedule of loss. In the present
case, the outstanding information went to the very heart of the claimants
case. Without the experts report she did not know whether she had a
viable case.
The situation there appears to me to be markedly different. The solicitor could
not properly file a statement of case in professional negligence, supported with
a statement of truth, without a report which was delayed because of a failure
of the first defendant. A similar situation applied in Imperial Cancer. The
present case is more closely analogous to Hoddinott where an extension was
sought because the claimants were not in a position to serve fully particularised
particulars of claim.
4
Collier v Williams [2006] EWCA Civ 20 at [148][150].
T134
40. Subject, therefore, to the impact of the communications from the Court, I am
satisfied, on the basis of the material before me and the full argument which
I have heard from both parties, that it was not appropriate to give permission
to extend time for service of the claim forms. City had left it until beyond the
eleventh hour so far as the second incident was concerned to issue proceedings.
In relation to the flooding in the basement, the proceedings would have been
time barred by January 2009 in any event. Whether that was so in respect of
the pseudomonas infection depends on when it first arose. City had taken no
steps to communicate to the defendants its intention to issue the proceedings to
the defendants. It did not need to have an extension in order to justify issuing
a claim form or, indeed, Particulars of Claim. The fact that it was arguably
more appropriate from a case management point of view for the Particulars to
be delayed does not justify not serving the claim forms themselves.
Communications from the Court
41. Do the communications from the Court make any difference?
42. Before I turn to answer that question I have some observations on what appears
to have occurred. I do not wholly understand what the TCC administrator
meant, or what he was understood to mean, by saying that the application
would be treated as being in time as the mid-term break would delay Ramsey
J.s deliberations upon it. The application was in time in the sense that it was
filed before the expiry of time for service of the claim forms. What appears to
have been being said was that because the application had been filed before the
expiry of the time for service of the claim forms City would, or could expect
to, receive an extension up to the time that Ramsey J. was able to consider the
application (or shortly thereafter).
43. If this is what was said and understood it was inappropriate (a) for it to be
said and (b) for it to have been acted on. First, whatever order was to be
made would depend, as the solicitors should have realised, on what the judge
decided after studying the relevant material. No pre-indication should have
been given of what he would (or would not) decide; nor should it have been
relied on as an assurance of what his decision would be. Secondly, the order
was being sought ex parte. It was, thus, vulnerable to being set aside on an
application made by the affected party. Any suggestion, therefore, that the
claimant would be covered by the short extension begged the question of what
might happen on any application to discharge.
44. The problem inherent in the May 15 communication manifested itself the
following Tuesday May 19 after Ramsey J. had considered the papers. He
initially expressed the view, without deciding, that the appropriate procedure
was for the claim forms to be served with any necessary short extension
subject to any application by the defendants, but on the next day, on
reviewing the authorities, concluded that that would not be appropriate.
45. I do not accept that the fact that City was given to understand that there would
be a short extension pending Ramsey J.s consideration of the papers justifies
extending the time for service. Hoddinott establishes that the fact that a
claimant has forborne to serve the claim form because he has obtained an order
for the extension of time for service ex parte is not a relevant consideration in
deciding, inter partes, whether or not to extend time:
Thus, if a claimant applies for and obtains an extension of time for
service of the claim form without giving notice to the defendant, he
T135
does so at his peril. He should know that an order obtained in such

circumstances may be set aside. He can take no comfort from the fact
that the court has made the order. He cannot be heard subsequently to
say that it was the courts fault that the order was made.
46. City cannot, in my judgment, be in any better position after receiving the
indication which they did receive, from someone who was not a judge, as to
what the judge would do, than they would have been in if a judge had, on the
same day, actually made an order extending time for service of the claim form
until (say) consideration of the question by another judge or some later time.
Such an order would be vulnerable to discharge inter partes. The application
to discharge is a rehearing of the issue, to be determined by the judge hearing
it on the totality of the material before him. It is not a review of the decision
made on the without notice application.5
47. I am not therefore persuaded that I should reach a different view on account
of what passed between Clyde & Co and the Court administration. Clyde
& Co must be taken to know that anything done ex parte was vulnerable to
discharge inter partes. That is enough to dispose of the point.
48. I am also surprised at the absence of any satisfactory record of what is
now said to be an important conversation at a pivotal time. The telephone
conversation on May 15 appears from the telephone records to have lasted
three minutes, 24 seconds. Ms Starey was told that Ramsey J. would be back
on Monday May 18. Her manuscript note reveals nothing more as to the
content of the conversation. It was not preceded or followed by any written
communication. Nor is it clear exactly what the nature of her discussion with
the supervising partner was, of which no note was made. There is, thus, no
record of the basis upon which it was considered appropriate not to serve the
claim forms solely because of what the administrator had said.
49. In those circumstances I shall discharge the orders of Ramsey J., giving
permission to extend the time for service of the claim forms in both actions,
and set aside the service of the claim forms effected pursuant thereto. I invite
submissions as to whether any further order than that needs to be made.
Commentary
C1 All those engaged in litigation have at some point been affected by the
consequences of failing to comply with the time limits which are imposed by
the rules governing its conduct. From the junior barrister frantically combing
his White Book to establish the precise situation in relation to appeals (a topic
which always seems to present a moving target), to the hapless litigant in
person who has to take on board the potential consequences of not sending a
particular piece of paper to a particular address (such as a companys registered
office). This is an area which regularly engenders extreme nervousness. In
the case under consideration, the underlying danger was that presented by the
provisions of the Limitation Act. The limitation period in respect of the two
incidents of which complaint was made had expired by January 19, 2009,
three days after the claim forms were issued ([37]). The claimant employer
was therefore in the uncomfortable position of finding its claim on a knifeedge in the sense that any failure to comply with the time limits laid down by
the CPR could out it at risk of being dismissed.
5
Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 W.L.R. 3206 at [33].
T136
C2 As Christopher Clarke J. observed (at [37]), the rules require service within four
months, a not ungenerous period in respect of a company registered in England
and Wales. The fly in the ointment as far as the employer was concerned was
that the contractor had begun an arbitration against it, some of the issues of
which overlapped with the claims made against the adjoining site subcontractor
and the insurers in the litigation before the TCC. The employers position was
that until the arbitration was completed the employer could not say whether it
was responsible for any delay and what its losses were, or whether it had any
and in those circumstances the request for an extension of time was not as a
result of any failure by the employer or its solicitors, but was a result of the
practical difficulty presented by the slow progress of the arbitration ([29]).
C3 The learned judge accepted that, insofar as the claim depended upon the liability
of the employer to the contractor under the building contract, the amount of the
loss could not be determined until the award, but was far from convinced that
that applied to all the loss pleaded in the Particulars of Claim in the two actions
([33]). In any event, even if all the claims were contingent on the outcome of the
arbitration, the employer could still claim a declaration of its right to be indemnified against any loss flowing from the occurrence of that contingency ([34]). The
Court went on to suggest two alternative methods of dealing with any problems
generated by the arbitration, namely postponing the production of the particulars of claim in both actions until the award in the arbitration was produced, or
a pleading out of the employers claims, since they had been the subject of no
previous letter before action or compliance with the relevant protocol, on the
basis that particulars could be given when the award was made ([36]).
C4 As Christopher Clarke J. observed ([26]), the principles upon which the Court
acts in respect to applications to extend time have been the subject of substantial
appellate consideration. In particular, in Hoddinott, it was established that in
considering whether to set aside an order granting an extension of time it is not
a relevant consideration that the claimant has proceeded in reliance of the extension of time granted on an ex parte application. This presented the employer in
the case under consideration with a considerable difficulty: it had proceeded in
reliance, not of an extension granted on such an application, but of an indication by the Court administration that a short extension would be granted in any
event ([31]). The evidence was summarised by the learned judge as follows:
What appears to have been being said was that because the application
had been filed before the expiry of the time for service of the claim forms
City would, or could expect to, receive an extension up to the time that
Ramsey J was able to consider the application (or shortly thereafter).
The difficulty was that the employer could not be in any better position after
receiving the indication from someone who was not a judge, as to what the
judge would do, than it would have been in if a judge had, on the same day,
actually made an order extending time for service of the claim form, in which
case applying the principle established in Hoddinott, reliance on such an order
was irrelevant ([46]).
C5 On this analysis, the employers position was unsustainable. The facts were,
of course, unusual but not entirely unprecedented. Perhaps the short lesson to
be drawn is that nothing short of a binding order can be relied on.
Index
This index has been prepared using Sweet & Maxwells Legal Taxonomy. Please
see the note at the front of this publication.
Abuse of process
adjudication, 512527
Acceptance
defects
comparative law, 344356
Adjudication
construction claims
Part 8 claims, 319324
construction contracts, 512527
oral contracts, T1T15
payments, 684690
timetables, 449457
enforcement
construction industry, 357375
discretion to stay, 3652
Part 8 claims, T27T34
rules
Technology and Construction
Solicitors Association,
220228
Adjudicators
decisions
severability, 376383
Adjudicators powers and duties
Bills
proposed legislative changes,
357375
rules
220228
Admissibility
construction contracts
recoverability of liquidated
damages, 5267
Affirmation
preliminary issues, T57T66
Alternative dispute resolution
adjudication
severability of adjudicators
decisions, 376383
Engineering and Construction
Contract, 591612
Appeals
adjudication
Apportionment
concurrent causes
damages and extensions of time,
7995
Arbitral proceedings
arbitrators powers and duties, 310
Arbitral tribunals
Islamic law
techniques for cross-cultural
tribunals, 3035
Arbitration
consultation documents
Hong Kong, 7172
Arbitration agreements
Latvia, 269273
pre-action protocols
costs, T107T114
Arbitrators powers and duties
arbitral proceedings, 310
Architects
expert witnesses
permission to call additional witness
from same discipline,
T57T66
Assignment
contractual rights
arbitration agreements, 269273
Australia
construction law
expert determination, 483497
Bias
expert determination
implied terms, 168178
Binding force
arbitration agreements
Latvia, 269273
Bonds
construction law
comparison with letters of comfort,
2429
BOT contracts
non-performance
Kuwait, 96102
Index
Breach
public procurement procedures
notice, 528547
Breach of contract
adjudication
construction claims
United States, 444448
delay
measure of damages, 150167
liquidated damages
Malaysian standard form
construction contracts,
103116
Brunei Darussalam
damages, 5267
Business interruption
employee time spent on flood
damage, 121149
Case law
construction law
indexes, 613669
Causation
settlement
reasonableness, T79T105
Civil evidence
arbitral tribunals
tribunals, 3035
Civil law
arbitral tribunals
tribunals, 3035
Claim forms
service
extensions of time, T123T136
Codes of practice
construction professionals
groundwater, 274307
Commercial arbitration
claim forms
extensions of time for service of,
T123T136
Commercial contracts
risk management
drafting dispute management
clauses, 199205
Common law
arbitral tribunals
tribunals, 3035
Comparative law
construction industry
minor defects, 344356
Conciliation
public works contracts
Ireland, 6871
Concurrent causes
apportionment
damages and extensions of time,

7995
Conditional fee agreements
costs between the parties
reasonable reliance on estimates,
388402
legal costs insurance
disclosure and inspection, 547564
Conduct
offer and acceptance
contract terms, T35T57
Conflict of laws
Latvia, 269273
Consequential loss
employee time spent on flood
damage, 121149
Construction claims
FIDIC conditions of contract,
405443
limitations
Part 36 offers
costs, T115T122
Construction contracts
payments, 684690
severability of adjudicators
decisions, 376383
Solicitors Association rules,
220228
apportionment
concurrent causes of delay, 7995
costs incurred in pre-action
protocols, T107T114
claim forms
extensions of time for service of,
T123T136
comparative law
contract terms
liabilities, T79T105
offer and acceptance, T35T57
overpayments, T67T77
delay
damages, 5267
enforcement
bias, 168178
fixed price contracts
variation, 384388
jurisdiction
timetables, 449457
liquidated damages
Malaysian standard form contracts,
103116
Index
oral contracts
adjudication, T1T15
performance bonds
contractor insolvency, 331343
preliminary issues
repudiation or affirmation,
T57T66
conciliation, 6871
security
repayments, 229256
share of profits
enforcement, 3652
withholding payments
validity of notices, 670675,
675683
Construction industry
adjudication
enforcement, 357375
comparative law
measure of damages
standard of proof, 504511
retention of title
third parties, 498503
Construction law
case law
indexes, 613669
legal research, 189198
Construction materials
contractors
insolvency, 331343
Construction professionals
codes of practice
groundwater, 274307
Construction projects
contractors
partnering, 206219
tenders, 457477
transparency of tender criteria,
T16T25
Consultation documents
arbitration
Hong Kong, 7172
Contract terms
commercial contracts
risk management and drafting
dispute management clauses,
199205
liabilities, T79T105
drafting
unforeseen events impacting on
performance, 117120
measure of damages
conciliation, 6871
Contractors
partnering, 206219
insolvency
performance bonds, 331343
Contractual rights
assignment
Costs
construction claims
Part 36 offers, T115T122
pre-action protocols
arbitration agreements, T107T114
Costs between the parties
costs estimates
proportionality, 388402
Costs estimates
proportionality, 388402
Damage to property
measure of damages
reinstatement, 121149
Damages
concurrent causes
apportionment, 7995
validity of withholding notices,
670675
Defects
comparative law, 344356
delay
timber
Delay
concurrent causes
apportionment, 7995
damages, 5267
670675
loss of profits
Design and layout
groundwater
basements, 274307
Directives
mediation
civil and commercial matters,
263266
Disclosure and inspection
group litigation, 547564
Discretion
repayment of security, 229256
stay of execution
enforcement of adjudicators
decision, 3652
Dispute resolution
Index
clauses, 199205
international construction contracts
contract management using outside
counsel, 1123
Drafting
contract terms
unforeseen events impacting on
performance, 117120
dispute resolution
risk management and commercial
contracts, 199205
EC law
mediation
263266
tenders, 457477
T16T25
Economic duress
settlement
legal professional privilege,
308319
Employees
measure of damages
time spent on flood damage,
121149
Enforcement
adjudication
construction contracts, T1T15
discretion to stay, 3652
bias, 168178
Engineering and Construction Contract
alternative dispute resolution,
591612
Engineers
breach of contract
Error of law
damages, 5267
Expert determination
construction law, 483497
implied terms
bias, 168178
Expert witnesses
architects
permission to call additional witness
from same discipline,
T57T66
Extensions of time
apportionment
claim forms
service of, T123T136
FIDIC conditions of contract
construction claims, 405443

Fixed price contracts
variation, 384388
Floods
damage to property
reinstatement, 121149
Force majeure
contract terms
drafting, 117120
Framework agreements
T16T25
Georgia
performance
unforeseen events, 117120
Good faith
security
repayments, 229256
Groundwater
design and layout
basements, 274307
Group litigation
Guarantees
construction law
2429
Hong Kong
arbitration
consultation documents, 7172
comparative law
minor defects in construction
projects, 344356
Implied terms
sub-contracts, T1T15
bias, 168178
variation, 384388
Implied waiver
legal professional privilege
economic duress, 308319
Indexes
construction law
case law, 613669
Insolvency
contractors
performance bonds, 331343
Interest
adjudication
jurisdiction, T1T15
Interim injunctions
T16T25
Interim third party debt orders
stay of execution
Index
decision, 3652
International commercial arbitration
Latvia, 269273
International construction contracts
dispute resolution
contract management using outside
counsel, 1123
International Court of Arbitration
Hong Kong, 7172
International investment disputes
Latvia, 269273
Invoices
sub-contractors
Ireland
conciliation, 6871
Islamic law
arbitral tribunals
tribunals, 3035
Issue estoppel
JCT contracts
measure of damages
Jurisdiction
adjudication
interest, T1T15
adjudicators
severability of decisions, 376383
adjudicators powers and duties,
357375
timetables, 449457
construction law
Kuwait
BOT contracts
contractual responsibility, 96102
Latvia
Law journals
construction law
Legal advice
dispute resolution, 1123
Legal costs insurance
group litigation
Legal expenses insurance
388402
Legal professional privilege
settlement
economic duress, 308319
Legal research
Letters of credit
construction law
2429
Letters of intent
Liabilities
causation, T79T105
Limitations
construction claims
Liquidated damages
BOT contracts
Kuwait, 96102
delay, 5267
standard forms of contract
Malaysia, 103116
Litigation privilege
Loss of profits
delay
Malaysia
standard forms of contract
liquidated damages, 103116
Measure of damages
delay
loss of profits, 150167
reinstatement
damage to property, 121149
Mediation
EC law
263266
Turkey, 179182
Mesothelioma
388402
Miscarriage of justice
damages, 5267
Natural justice
adjudication
timetables, 449457
adjudicators
severability of decisions, 376383
implied terms, 168178
New South Wales
Non-performance
BOT contracts
Kuwait, 96102
Index
Northern Ireland
tenders, 457477
T16T25
Notice
breach, 528547
retention of title
Notices
withholding payments
validity of, 670675, 675683
Offer and acceptance
contract terms, T35T57
Oral contracts
adjudication, T1T15
Overpayments
sub-contractors
waiver, T67T77
Part 8 claims
adjudication, T27T34
construction claims, 319324
Part 36 offers
construction claims
costs, T115T122
Partnering
contractors
Payments
Penalty clauses
Performance
contract terms
unforeseen events, 117120
Performance bonds
contractors
insolvency, 331343
Peru
comparative law
projects, 344356
Practical completion
comparative law
projects, 344356
Pre-action disclosure
arbitral tribunals
tribunals, 3035
Pre-action protocols
construction claims
costs
arbitration agreements, T107T114
Preliminary issues
repudiation or affirmation,
T57T66
Project management
dispute resolution, 1123
Proportionality
388402
Public policy
construction law
Public procurement procedures
breach
time limits, 528547
tenders
construction projects, 457477
transparency, T16T25
Public works contracts
conciliation
Ireland, 6871
Quantum meruit
invoices
failure to distinguish between paid
and unpaid invoices, T67T77
Reasonableness
settlement, T79T105
Reinstatement
damage to property
floods, 121149
Remedies
liquidated damages, 569590
Remoteness
settlement
Repayments
security
Repudiation
preliminary issues, T57T66
Retention of title
Risk management
clauses, 199205
Rules
adjudication
220228
Sale of goods
retention of title
Scotland
apportionment
Index
670675
Security
repayments
Service
claim forms
extensions of time, T123T136
Settlement
economic duress
legal professional privilege,
308319
Severability
adjudicators
decisions, 376383
Share of profits
enforcement, 3652
Slip rule
adjudicators powers and duties,
357375
Solicitors powers and duties
388402
Spain
comparative law
projects, 344356
Standard forms of contract
contract terms
liquidated damages
Malaysia, 103116
Standard of proof
Standards
construction professionals
groundwater, 274307
Stay of execution
discretion
decision, 3652
Striking out
breach, 528547
Sub-contractors
overpayments
waiver, T67T77
settlement
Sub-contracts
implied term, T1T15
contract terms

variation, 384388
Substantial performance
comparative law
projects, 344356
fixed price contracts, 384388
Tenders
breach, 528547
construction projects, 457477
transparency, T16T25
Termination
BOT contracts
Kuwait, 96102
Third parties
retention of title, 498503
Timber
defects
Time limits
breach, 528547
Timetables
jurisdiction, 449457
Transparency
tenders
public procurement procedures,
T16T25
Turkey
mediation
draft legislation, 179182
United States
apportionment
construction claims
limitations and the discovery rule,
444448
construction law
Variation
fixed price contracts, 384388
Void contract terms
Waiver
sub-contractors
Withholding payments
validity of notices, 670675,
675683
Construction
Law
Journal
INCORPORATING TECHNOLOGY AND CONSTRUCTION
LAW REPORTS
Volume 25
Construction
Law Journal
Editors
General and Articles Editor
ANDREW BURR, M.A. (CANTAB), A.C.I. ARB.,
Adjudicator, Arbitrator and Barrister
Case Note Editors

KIM FRANKLIN, LL.B., F.C.I. ARB.,
JULIAN HOLLOWAY,
B.A.
Partner, Speechly Bircham LLP
SUSAN LINDSEY,
R.I.B.A., F.C.I. ARB.,
International Case Note Editor

PAUL BUCKINGHAM, B.Sc., C.Eng. F.I.Chem.E.,
Barrister
Book Reviews and Editorial

KIM FRANKLIN, LL.B., F.C.I. ARB.,
Information Section and Editorial

SUSAN LINDSEY, R.I.B.A., F.C.I. ARB.,

DOMINIC D.W. HELPS
Partner, Shadbolt & Co. LLP
PETER SHERIDAN
Partner, Shadbolt & Co. LLP

DARRYL ROYCE, B.A.
Barrister
Consultant Editor
THE HONOURABLE MR JUSTICE RAMSEY, M.A., C. Eng. M.I.C.E.
Peer Review Editor
DR ISSAKA NDEKUGRI B.Sc. (CIVIL ENG), L.L.B, M.Sc., Ph.D., M.C.I.O.B., M.R.I.C.S.
School of Engineering and the Built Environment, University of Wolverhampton
Editorial Board
JOHN BISHOP, LL.B., Solicitor
and Partner, Pinsent Masons
JENNIE PRICE,
MICHAEL FURMSTON,
SALLY ROE, B.A., Solicitor, Partner and Head of the

Construction and Engineering Group, Freshfields
T.D., B.A., B.C.L., M.A., LL.M.,

Barrister, Professor of Law, University of Bristol
NEIL KAPLAN,
Q.C., (Hong Kong),

LL.B., F.C.I. Arb., Barrister, Visiting
Professor, City University of Hong Kong
ANTHONY LAVERS,
LL.B., M. Phil., Ph.D., M.C.I. Arb., Barrister,
Professional Support Lawyer, White & Case LLP
and Visiting Professor of Law, Oxford Brookes University
THE RIGHT HONOURABLE

LORD JUSTICE MAY, M.A.
LL.B., Barrister,
Director, Major Contractors Group
JUSTIN SWEET
Previously Professor of Law, University of
California (Berkeley)
HIS HONOUR JUDGE

ANTHONY THORNTON,
Q.C., Judge of the Technology & Construction Court
PETER WOOD, LL.B.,

Solicitor and Senior Resident Partner, Pinsent Masons,
Manchester
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2009 Thomson Reuters (Legal) Limited and Contributors
Table of Contents
Articles
Apportionment and the Common Law: Has City Inn Got it Wrong? By Brodie McAdam 79
Arbitrators Taking Procedural ControlA Good Idea or Not? By H.H. Judge John
Toulmin CMQ Q.C.
3
Construction Law Research: Time to Get Going By Justin Sweet
189
Contractual Responsibility under Kuwaiti Build Operate Transfer Contracts By
Dr Yasser Ahmed Kamel El Serafy
96
Claims, Disputes and Arbitration Under the Red Book and the New Red Book By
Jamal Al-Dine Nassar
405
Dispute Avoidance in International Construction Projects: The Use of Outside
Counsel as Contract Manager By Elliott Geisinger
11
Dispute Resolution in NEC3User Unfriendly? By Ben Beaumont
591
Drafting Dispute Management Clauses: Principles of Risk Management for
Commercial Contracts By F. Peter Phillips
199
Expert Determination in Major Construction Disputes: Public Policy, Uncertainty
and Misclassification By Trevor Thomas
483
Letters of Comfort Compared and Contrasted with Guarantees, Bonds and Other
Instruments By Cecily Davis and Emma Joyce
24
Liquidated Damages By Dr Hamish Lal
569
Liquidated Damages in the Malaysian Standard Forms of Construction Contract:
the Law and the Practice By M.S. Mohd Danuri, M.E. Che Munaaim and L.C. Yen 103
Minor Defects in Construction Projects: A Comparative Approach By Eric Franco
Regjo
344
Post-Construction Contract Claims: Statutes of Limitations and the Discovery
Rule By Steven C. Bennett
444
Protection against Contractor Insolvency by Bonds By Jane Jenkins and Pauline Page 331
Retention of Title Clauses and Section 25 of the Sale of Goods Act 1979 By Ned
Beale and Roz Mitchell
498
Stripping Arbitration Agreements of their Economic Value in the Overloaded
Courts of Latvia By Daimars Skutans
269
Techniques for Handling the Cross-Cultural Tribunal By Mark Raeside Q.C.
30
The Impact upon Contractual Performance of Unforeseen EventsGenerally
and Under the Law of Georgia By Ketevan Betaneli
117
The Views and Experiences of Specialist Contractors on Partnering in the United
Kingdom By Jim Mason
206
Watertight Basements By John Wasilewski
274
Weather Warning: Adjudication Hot-House Meets Depression. Precipitation
Expected By Alexander Hickey
357
What Degree of Proof is Required in the Ascertainment of Loss and/or Expense?
By Christopher Ennis
504
Contributors
Beale, Ned and Mitchell, Roz: Retention of Title Clauses and Section 25 of the Sale of
Goods Act 1979
Beaumont, Ben: Dispute Resolution in NEC3User Unfriendly?
Bennett, Steven C.: Post-Construction Contract Claims: Statutes of Limitations and the
Discovery Rule
Betaneli, Ketevan: The Impact upon Contractual Performance of Unforeseen EventsGenerally and Under the Law of Georgia
Danuri, M.S. Mohd, Munaaim, M.E. Che and Yen, L.C.: Liquidated Damages in the
Malaysian Standard Forms of Construction Contract: the Law and the Practice
Davis, Cecily and Joyce, Emma: Letters of Comfort Compared and Contrasted with
Guarantees, Bonds and Other Instruments 24 Ennis, Christopher: What Degree of Proof
is Required in the Ascertainment of Loss and/or Expense?
Geisinger, Elliott: Dispute Avoidance in International Construction Projects: The Use of
Outside Counsel as Contract Manager
Hickey, Alexander: Weather Warning: Adjudication Hot-House Meets Depression.
Precipitation Expected
Jenkins, Jane and Page, Pauline: Protection against Contractor Insolvency by Bonds
Lal, Dr Hamish: Liquidated Damages
Mason, Jim: The Views and Experiences of Specialist Contractors on Partnering in the
United Kingdom
McAdam, Brodie: Apportionment and the Common Law: Has City Inn Got it Wrong?
498
591
444
117
103
504
11
357
331
569
206
79
vi
Nassar, Jamal Al-Dine: Claims, Disputes and Arbitration Under the Red Book and the
New Red Book
Phillips, F. Peter: Drafting Dispute Management Clauses: Principles of Risk Management
for Commercial Contracts
Raeside, Mark Q.C.: Techniques for Handling the Cross-Cultural Tribunal
Regjo, Eric Franco: Minor Defects in Construction Projects: A Comparative Approach
Serafy, Dr Yasser Ahmed Kamel El: Contractual Responsibility under Kuwaiti Build
Operate Transfer Contracts
Skutans, Daimars: Stripping Arbitration Agreements of their Economic Value in the
Overloaded Courts of Latvia
Sweet, Justin: Construction Law Research: Time to Get Going
Thomas, Trevor: Expert Determination in Major Construction Disputes: Public Policy,
Uncertainty and Misclassification
Toulmin, H.H. Judge John CMQ Q.C.: Arbitrators Taking Procedural ControlA Good
Idea or Not?
Wasilewski, John: Watertight Basements
405
199
30
344
96
269
189
483
3
274
vii
Table of Cases 2009

A Straume (UK) Ltd v Bradlor Developments Ltd [2000] B.C.C. 333 . . . . . . . . . . . . . 335
ABB Power Construction v Norwest Holst Engineering Ltd (2000) 2
T.C.L.R. 831 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
ABB Zantingh Ltd v Zedal Building Services Ltd [2001] B.L.R. 66 . . . . . . . . . . . . . . 452
ACA Developments Pty Ltd v Sullivan (2005) 21 BCL 71 . . . . . . . . . . . . . . . . . . . . . . . 239
A E Yates Trenchless Solutions Ltd v Black & Veatch Ltd [2008] EWHC 3183
(TCC); [2009] T.C.L.R. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T35
A J Bekhor & Co Ltd v Bilton [1991] Q.B. 923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 552
AKZO Nobel Chemicals Ltd and Akcros Chemicals Ltd v Commission (T-125/03
and T-253/03) [2007] OJ C269/43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
AKT Reidar v Arcos Ltd [1927] 1 K.B. 352 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 589
AMEC Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWHC Civ
1418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380, 381
AWG Construction Services Ltd v Rockingham Motor Speedway Ltd [2004]
EWHC 888 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 380
Abacus Funds Management v Davenport [2003] NSWSC 1027 . . . . . . . . . . . . . . . . . . . 239
Admiral Management Services Ltd v Para-Protect Europe Ltd [2002] EWHC 233
(Ch); [2002] 1 W.L.R. 2722 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 145, 166
Aedas Architects Ltd v Skanska Construction UK Ltd [2008] CSOH 64 . . . . . . . . . . . 670
Aerospace Publishing Ltd v Thames Water Utilities Ltd [2007] EWCA Civ 3 . . . . . 121
Age Old Builders Ltd v Swintons Ltd [2003] V.S.C. 307 . . . . . . . . . . . . . . . . . . . . 487, 496
Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363, 364, 370, 374
Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] N.S.W.S.C. 996 . . . . . . . . . 487, 494
Alder v Moore [1961] 2 Q.B. 57; [1961] 2 W.L.R. 220; [1990] 1 All ER 303
CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 582, 583
Alfred McAlpine Capital Projects Ltd v Tilebox Ltd [2005] EWHC 281; [2005]
B.L.R. 271; 104 Con. L.R. 39 TCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 573, 574, 575
Alghussein Establishment v Eton College [1988] 1 W.L.R. 587 . . . . . . . . . . . . . . . . . . . . 92
Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802
(TCC); [2009] T.C.L.R. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374, T1
Allson International Management Ltd v LA Cemara Resort Management Sdn Bhd
[2001] M.L.J.U LEXIS 638 (unreported) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Alstom Signalling Ltd (t/a Alstom Transport Information Solutions) v Jarvis
Facilities Ltd [2004] EWHC 1285, QBD (TCC) . . . . . . . . . . . . . . . . . . T29, T33, T34
Aluminium Industrie Vassen VB v Romalpa Aluminium Ltd [1986] 34
B.L.R. 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 339
Amaryllis Ltd v HM Treasury (sued as OGC Buying Solutions) [2009] EWHC
1666 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 528
American Cyanamid Co v Ethicon Ltd [1975] A.C. 296 . . . . . . . . . . . . . . . . . . . . . . . . . T18
Anderson v G H Mitchell & Sons (1941) 65 C.L.R. 543 . . . . . . . . . . . . . . . . . . . . . . . . . 487
Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] A.C. 191 . . . . . . . T84
Archivent Sales & Developments Ltd v Strathclyde RC 1985 S.L.T. 154; 27 B.L.R.
98 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 501
Arenson v Casson Beckman Rutley & Co [1977] A.C. 405 . . . . . . . . . . . . . . . . . . . . . . . 495
Ariston SRL v Charly Records Ltd (1990) The Independent 13 April 1990 . . . . . . . . 574
viii
Table of Cases
Armacel Pty Ltd v Smurfit Stone Container Corp [2008] F.C.A. 592 . . . . . . . . . . . . . . 494
Atos Consulting Ltd v Avis Plc [2007] EWHC 323 (TCC) . . . . . . . . . . . . . . . . . . . . . . . 555
Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007] EWHC 131 (TCC) . . . 379
Avoncroft Construction Ltd v Sharba Homes Ltd [2008] EWHC 933 (TCC); [2008]
T.C.L.R. 7; 119 Con. L.R. 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
B v. Auckland District Law Society [2003] 2 AC 736 . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
BCT Software Solutions Ltd v C Brewer & Sons [2003] EWCA Civ
939 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T116, T117, T120, T122
BFI Group of Companies Ltd v DCB Integration System Ltd [1987]
C.I.L.L. 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
BP Exploration Co (Libya) Ltd v Hunt (No.2) [1982] 1 All E.R. 925 . . . . . . . . . . . . . 147
Baber v Kenwood Manufacturing Co 1428 [1978] 1 Lloyds Rep. 175 . . . . . . . 171, 177
Badgin Nominees Pty Ltd v Oneida Ltd [1998] V.S.C. 188 . . . . . . . . . . . . . . . . . . 486, 495
Balfour Beatty Construction Ltd v Lambeth LBC [2002] EWHC 597 (TCC) . . . . . . . 454
[2008] EWHC 3029 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
Bank of Nova Scotia v Hellenic Mutual War Risks Association (Bermuda) Ltd
[1990] 1 Q.B. 818 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Barlow v Perks unreported, October 19, 2007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392
Barr v Biffa [2009] EWHC 1033 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547
Bateman Project Engineering Pty Ltd v Resolute Ltd (2002) 18 B.C.L. 41 . . . . . . . . . 487
Baulderstone Hornibrook Engineering Pty Ltd v Kayah Holdings Pty Ltd (1998)
14 B. & C.L. 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486
Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd [1998] 2 W.L.R. 860, HL
(NI) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 514, 522
Bennett (Electrical) Services Ltd v Inviron Ltd [2007] EWHC 49 (TCC) . . . . . . . . . . T14
Bernhard Schulte GmbH & Co KG v Nile Holdings Ltd [2004] Lloyds Rep.
352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 174
Bhai Panna Singh v Bhai Arjun Singh AIR 1929 Privy Council 179 . . . . . . . . . . . . . . . 66
Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWHC 6
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586
Biggin & Co Ltd v Permanite Ltd [1951] 2 K.B.
314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T91, T92, T93, T94, T95, T103, T104, T105
Birmingham City Council v Paddison Construction Ltd [2008] EWHC 2254
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373, 521, 522, 523, 524
Blair v Curran (1939) 62 CLR 484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000] B.L.R.
314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 370, 689, 690
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 C.L.R. 600 . 491
Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] B.L.R. 49; [2000] BLR 522, CA . . 47
Bovis Homes Ltd v Kendrick Construction Ltd [2009] EWHC 1359 (TCC) . . . . . . T107
Bovis Lend Lease Ltd v Trustees of the London Clinic [2009] EWHC 64 (TCC)363, 378
Boyajian v United States (1970) 191 Ct Cl 233, 423 F. 2d 1231 . . . . . . . . . . . . . . . . . . . 88
Boyd v Halstead Ex p. Halstead [1985] 2 Qd R 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Brawley v Marczynski (No.1) [2002] EWCA Civ 756; [2003] 1 W.L.R. 813T116, T120
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 . . . . . 239, 256
Brian Warwicker Partnership Plc v HOK International Ltd [2005] EWCA Civ 962;
[2006] P.N.L.R. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Bridge v Campbell Discount Co Limited [1962] AC 600 . . . . . . . . . . . . . . . . . . . . . . . . . 574
Bridge v Grand Junction Railway (1838) 3 M. & W. 244 . . . . . . . . . . . . . . . . . . . . . . . . . 85
Bridge UK.com Ltd (t/a Bridge Communications) v Abbey Pynford Plc [2007]
EWHC 728 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Bridgeway Construction Ltd v Tolent Construction Ltd April 11, 2000, District
Registry (Liverpool) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 689
Table of Cases
ix
British Bank for Foreign Trade Ltd v Novinex [1949] 1 KB 628 . . . . . . . . . . . . . . . . . T37
British Columbia Electric Railway Co Ltd v Loach [1916] 1 A.C. 719 . . . . . . . . . . . . . 85
British Steel Corp v Cleveland Bridge Co [1984] 1 All E.R. 504 . . . . . . . . . . . . . . . . . T74
Brodyn Pty Ltd v Davenport [2003] NSWSC 1019 . . . . . . . . . . . . . . . . . . . . . . . . . 252, 255
Brogden v Metropolitan Railway (1877) 2 AC 666 . . . . . . . . . . . . . . . T37, T38, T39, T53
Burchell v Bolland [2005] EWCA Civ 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T121
Butler Machine Tool Co Ltd v Ex-Cell-O Corporation (England) Ltd, [1979] 1
W.L.R. 401 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T39
Butterfield v Forester 1809 11 East 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Buttes Gas & Oil Co v Hammer (No.3) [1981] Q.B. 223 . . . . . . . . . . . . . . . . . . . . . . . . . 319
CIB Properties v Birse Construction Ltd [2004] EWHC 2365 (TCC) . . . . 370, 454, 455
CJP Builders Ltd v William Verry Ltd [2008] EWHC 2025 (TCC); [2008] T.C.L.R.
10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 362, 367, 373, 453
CLL Associates LP v Arrowhead Pacific Corp, 174 Wis. 2d 604, 607, 497 N.W.2d
115, 116 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444, 445, 447
Campbell v Edwards [1976] 1 W.L.R. 403 . . . . . . . . . . . . . . . . . . . . . . . . 171, 172, 174, 177
Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC); [2008] B.L.R.
250 . . . . . . . . . . . . . . . . . . . . . . . . . . . 359, 360, 361, 373, 376, 378, 379, 380, 382, 383
Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ
1358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 358, T12, T13, T15
Carillion JM Ltd v Bath and North East Somerset Council, Nicholas Grimshaw
& Partners Ltd, Third Party [2009] EWHC 166 (TCC); [2009] T.C.L.R. 5 . . . . T57
Carisbrooke Shipping CVS v Bird Part Ltd [2005] 2 Ll R 626 . . . . . . . . . . . . . . . . . . . 166
Carus-Wilson and Greenes Arbitration, Re (1887) L.R. 18 Q.B.D. 7 . . . . . . . . . . . . . . 495
Cerium Investments v Evans (1991) 62 P. & C.R. 203, CA . . . . . . . . . . . . . . . . . . . . . . . 92
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] A.C. 334 . . . . 488
Chanthall Investments Ltd v FG Minter Ltd 1976 S.C. 73 Court of Session . . . . . . . 589
Chaplin v Hicks [1911] 2 K.B. 786 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107, T21
Chattan Developments Ltd v Reigill Civil Engineering Contractors Ltd [2007]
EWHC 305 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585, 586
Cine Bes Filmcilik Ve Yapim Click v United International Pictures [2003] EWCA
Civ 1699 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 576, 577, 579
City & General (Holborn) Ltd v Structure Tone Ltd [2009] EWHC 2139 (TCC) . . T123
City Inn Ltd v Shepherd Construction Ltd 2003 S.L.T. 885; 2003 S.C.L.R. 795;
[2003] B.L.R. 468; 2003 G.W.D. 18-549, IH (2 Div); affirming 2002 S.L.T.
781; 2001 S.C.L.R. 961; 2001 G.W.D. 26-999, OH . . . . . . . . . . . . . . . . 79, 80, 93, 94
City Inn Ltd v Shepherd Construction Ltd [2007] CSOH 190; [2008] B.L.R.
269; (2008) 24 Const. L.J. 590; [2008] C.I.L.L. 2537; 2008 G.W.D. 8-145,
OH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 81, 82, 86, 88, 89, 90, 91, 260
Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Yzquierdo &
Castaneda [1905] A.C. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Clydebank Engineering & Shipbuilding Company Ltd v Yzquierdo y Casteneda
[1905] A.C. 6 HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570, 572
Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 N.S.W.L.R. 1 . . . . 491, 493
Collier v Williams [2006] EWCA Civ 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T129, T133
Comyn Ching & Co (London) Ltd v Oriental Tube Co Ltd [1979] 17 BLR
56 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T93, T94, T105
Concordia Bus Finland Oy Ab, formerly Stagecoach Finland Oy Ab v Helsingin
kaupunki and HKL-Bussiliikenne (C-513/99) [2002] E.C.R. 1-7213 . . . . . . 458, 470
Conkling v. Turner [1989] 883 F2d 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Connex South Eastern Ltd v MJ Building Services Group Plc [2004] B.L.R.
333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T9, T10, T15
Corporation of Mercer University v National Gypsum Co 258 Ga. 365, 365, 368
S.e.2d 732, 733 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Courtney & Fairbairn Ltd v Tolaini Bros (Hotels) Ltd [1975] 1 W.L.R. 297 . . . . . . . 492
Cox v Bankside Members Agency (Discovery) [1995] C.L.Y. 4122 . . . . . . . . . . . . . . . 552
Table of Cases
Crabtree (BJ) (Insulation) Ltd v GPT Communication Systems (1990) 59 B.L.R. 93 . 51

Cubitt Building and Interiors Ltd v Richardson Roofing (Industrial) Ltd [2008]
EWHC 1020 (TCC); (2008) C.I.L.L. 2588 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Cullinane v British Rema Manufacturing Co Ltd [1954] 1 Q.B. 292 . . . . . . . . . . . . . . 165
Cumberland Cas & Sur Co v US Fed Cl-2008 WL 2628433 . . . . . . . . . . . . . . . . . . . . . . . 87
Czarnikow v Roth Schmidt & Co [1922] 2 K.B. 478 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
DGT Steel & Cladding Ltd v Cubitt Building & Interiors Ltd [2007] EWHC 1584
(TCC); (2007) B.L.R. 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
DSND Subsea Ltd (formerly DSND Oceantech Ltd) v Petroleum Geo Services
[2000] B.L.R. 530 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Darbishire v Warran [1963] 1 W.L.R. 1067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
David McLean Contractors Ltd v Albany Building Ltd, Unreported, November
10, 2005, (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523
Davies v Mann (1842) 10 M. & W. 546 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Dawdy and Hartcups Arbitration, Re (1884-85) L.R. 15 Q.B.D. 426. . . . . . . . . . . . . .495
De Gruchy Holdings Ltd v House of Fraser (Stores) Ltd, unreported,
May 22, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
Dean v Prince, [1954] 2 W.L.R. 538 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Decoma UK Ltd (formerly Conix UK Ltd) v Haden Drysys International Ltd
[2005] EWHC 2948 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 586, 587
Deko Scotland Ltd v Edinburgh Royal Joint Venture 2003 S.L.T. 727 . . . . . . . . . . . . . 225
Dimskal Shipping Co SA v. International Transport Workers Federation [1992]
2 AC 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
Discain Project Services Ltd v Opecprime Development Ltd [2001] B.L.R. 285 . . . . 454
Dobbs v National Bank of Australia (1935) 53 C.L.R. 643 . . . . . . . . . . . . . . . . . . 485, 486
Dodd v Churton [1897] 1 Q.B. 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Dorchester Hotel v Vivid Interiors Ltd [2009] EWHC 70 (TCC) . . . . . . . . 366, 374, 449
Drewes v Giangrosso 429 So.2d 198 (la. App. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
Dunlop and Rankin Ltd v Hendall Steel Structures [1957] 1W.L.R. 1102 . . . . . . . . . . . 43
Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co [1915] A.C.
79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104, 108, 571, 572, 576, 578, 579
Durtnell & Sons Ltd v Kaduna Ltd [2003] EWHC 517 (TCC); [2003] B.L.R. 225 . 376
Earl of Inchcape, Re [1942] Ch. 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC). . . . . . . . . . . . . . 372
Edmund Nuttall Ltd v RG Carter Ltd [2002] EWHC 400 (TCC) . . . . . . . . . . . . . . . . . . 360
Edmund Nuttall Ltd v Sevenoaks DC [2000] WL 1544581 . . . . . . . . . . . . . . . . . . . . . . . 370
Edwards v Skyways [1964] 1 All E.R. 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Ehrenhaft v Malcolm Price, Inc 483 A.2d 1192, 1195 (D.C. 1984) . . . . . . . . . . . 446, 447
Elizabeth Bay Developments Pty Ltd v Boral Building Services (1995) 36
N.S.W.L.R. 709 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 490, 492
Elsley v Collins Insurance Agencies Ltd (1978) 83 D.L.R. (3d) 1, Supreme Court
(Canada) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 575
Emcor Drake & Scull Ltd (formerly Drake & Scull Engineering Ltd) v Costain
Construction Ltd (t/a Costain Skanska Joint Venture) [2004] EWHC 2439
(TCC); 97 Con. L.R. 142; (2004) 148 S.J.L.B. 1314 . . . . . . . . . . . . . . . . . . . . . . . . 516
Emson Eastern (In Receivership) v EME Development 55 B.L.R. 114; 26 Con.
L.R. 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348
Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364
Euro London Appointments Ltd v Claessens International Ltd [2006] EWCA Civ
385 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 569
European Commission of the European Communities v France [2000] E.C.R. 1/7445458
Expandable Ltd v Rubin [2008] EWCA Civ 59 . . . . . . . . . . . . . . . . . . . 555, 556, 558, 560
Exploration Australia Pty Ltd v Murchison United NL (2005) 31 W.A.R. 187 483, 484
Export Credits Guarantee Department v Universal Oil Products Co [1983] 2 All
E.R. 205; [1983] I W.L.R. 399; 23 B.L.R. 106 HL . . . . . . . 569, 570, 581, 582, 583
Table of Cases
xi
F G Hawkes (Western) Ltd v Beli Shipping Co Ltd [2009] EWHC 1740

(Comm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T129
FG Minter Ltd v Welsh Health Technical Services Organisation 13 B.L.R. 1. . . . . . .507
Factortame Ltd v Secretary of State for Transport (No.6) [2001] 1 W.L.R. 942 . . . . . 10
Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) [2002]
UKHL 22; [2003] 1 A.C. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Fairfax Gerrard Holdings Ltd v Capital Bank Plc [2007] EWCA Civ 1226 . . . . . . . . 502
Falgat Construction Pty Ltd v Equity Australia Corporation Pty Ltd (2005) 62
NSWLR 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Farebrother Building Services Ltd v Frogmore Investments Ltd [2001] C.I.L.L.
1762, QBD (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223, 225, 376
Farm Assist Ltd (In Liquidation) v The Secretary of State for Environment, Food
and Rural Affairs [2008] EWHC 3079 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Fateh Chand v Balkishan Das [1964] 1 SCR 515 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Federal Insurance Co v Southwest Florida Retirement Center Inc 707 So.2d 1119,
1122 (Fla. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .447
Felton v Mulligan (1971) 124 C.L.R. 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Fender v St John Mildmay [1938] A.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Ferris v Plaister (1994) 34 N.S.W.L.R. 474 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Financial Ombudsman Service Ltd v Heather Moor & Edgecomb Ltd [2008]
EWCA Civ 64392Fiona Trust & Holding Corp v Privalov [2007] UKHL
40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364, 374
Fisher v Val de Travers Asphalte Co (No.2) (1876) 45 LJ (CP) 479 . . . . . . . . . T91, T93
Fletcher & Stewart v. Jay & Partners (1976) 17 BLR 38 . . . . . . . . . . . . . . . . . . . . . . . . T104
Fletcher Construction Australia Ltd v MPN Group Pty Ltd, unreported July 14,
1997 NSW Supreme Ct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486, 490
Forsikringsaktieselskapet Vesta v Butcher [1988] 3 W.L.R. 565 . . . . . . . . . . . . . . . . . . . . 85
Four Point Garage Ltd v Carter (1985) 3 All E.R. 12 . . . . . . . . . . . . . . . . . . . . . . . 500, 501
Galliford Try Construction Ltd v Michael Heal Associates Ltd [2003] EWHC
2886 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T10, T15
Galoo v Bright Graeme Murray [1994] 1 W.L.R. 1360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Garrett v Halton BC [2006] 5 Costs LR 798; [2006] EWCA Civ 1017 . . .398, 399, 402
Gaymark Investments Pty Ltd v Walter Construction Group Ltd [1999] NTSC
143, Supreme Court of the Northern Territories. . . . . . . . . . . . . . . . . . . . . . . . . . . 92, 93
Gebroeders Beentjes BV v Netherlands (C-31/87) [1988] E.C.R. 4636 . . . . . . . . 457, 470
General Feeds Inc Panama v Slobodna Plovidba Yugoslavia (The Krapan J) [1999]
1 Lloyds Rep. 688 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T94, T95, T96, T105
General Horticultural Co Ex p. Whitehouse, Re [1886] 32 Ch. D 512 . . . . . . . . . . . . . . 43
George Sollitt Construction v United States (2005) 64 Fed Cl 229 . . . . . . . . . . . . . . . . . 87
Gibson v Manchester City Council [1979] 1 WLR 294 . . . . . . . . . . . . . . . . . . . . . . . . . . T37
Gilbert Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] A.C. 689;
[1973] 3 W.L.R. 421; [1973] 3 All E.R. 195 HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . 585
Glencot Development & Design Co Ltd v Ben Barratt & Son (Contractors) Ltd
[2001] B.L.R. 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454
Government Insurance Office of New South Wales v Healey (No 2) (1991) 22
NSWLR 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Great Eastern Hotel Co Ltd v John Laing Construction Ltd (2005) 99 Con. L.R.
45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83, 89
Greater London Council v Cleveland Bridge & Engineering Co Ltd (1986) 34
B.L.R. 50; 8 Con. L.R. 30 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 590
HG Construction Ltd v Ashwell Homes (East Anglia) Ltd [2007] EWHC 144
(TCC); [2007] B.L.R. 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 518, 519, 520
HS Works Ltd v Enterprise Managed Services Ltd [2009] EWHC 729 (TCC) . 524, 525
Hadley v Baxendale (1854) 9 Ex. 341 . . . . . . . . . . . . . . . . . . . . 109, 110, T92, T101, T105
Hammond v Wolt [1975] V.R. 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496
Hammond & Co v Bussey (1887) 20 QBD 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . T92, T103
xii
Table of Cases
Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd

[1992] 1 Lloyds Rep. 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Harcourt v FEF Griffin [2007] EWHC 1500, QB . . . . . . . . . . . . . . . . . . . . . . . . . . . 552, 553
Harlow and Milner Ltd v Teasdale (No 2) [2006] EWHC 535 (TCC) . . . . . . . 47, 48, 49
Harlow and Milner Ltd v Teasdale (No.3) [2006] EWHC 1708 (TCC) . . . . . . 47, 48, 49
Harmon v House of Commons [1999] All ER (D) 1178 . . . . . . . . . . . . . . . . . . . . . . . . . . 471
Hashtroodi v Hancock [2004] EWCA Civ 652; [2004] 1 W.L.R. 3206 . . . . . T129, T135
Hayes v Dowding [1996] P.N.L.R 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . 313, 314, 316, 317
Hearn v Rhay (1975) 68 FRD 574 . . . . . . . . . . . . . . . . . . . . . . 312, 313, 314, 316, 317, 318
Heart Research Institute Ltd v Psiron Ltd [2002] N.S.W.S.C. 646 . . . . . . . . . . . . . . . . . 490
Henderson v 3052775 Nova Scotia Ltd [2006] UKHL 21; 2006 S.C. (H.L.)
85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 671, 672, 674
Henderson v Henderson (1843) 3 Hare 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Henry v BBC (Costs Capping) [2005] EWHC 2503, QB . 550, 557, 558, 559, 560, 561
Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999)
70 Con. L.R. 32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81, 86, 90, 91, 95
Henry Brothers (Magherafelt) Ltd v Department for Education Northern Ireland
[2007] NIQB 116; [2008] C.I.L.L. 2630, QBD (NI) . . . . . . . . . . . . . . . . . . . . . . . . . T23
Henry Bros (Magherafelt) Ltd, F B McKee & Co Ltd, Desmond Scott and Philip
Ewing T/A Woodvale Construction Co Ltd v Department of Education for
Northern Ireland (No.2) [2008] N.I.Q.B. 105 . . . . . . . . . . . . . . . . . . . . . . 457, 541, 542
Herschel Engineering Ltd v Breen Property Ltd [2000] BLR 272 . . . . . . . . . . . . . . . . . . 47
Heskell v Continental Express Ltd [1950] 1 All E.R. 1033 . . . . . . . . . . . . . . . . . . . . . . . . 83
Hitec Power Protection BV v MCI Worldcom Ltd [2002] EWHC 1953 (QB) . . . . . . 379
Hobson v Ashton Morton Slack Solicitors [2006] EWHC 1134
(Admin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 547, 553, 554, 557, 558, 559
Hoddinott v Persimmon Homes (Wessex) Ltd [2007] EWCA Civ 1203; [2008] 1
W.L.R. 806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T129
Holman Group v Sherwood, unreported, 7 November 2001 . . . . . . . . . . . . . . . . . . . . . . . 163
Holme v Guppy (1838) 3 M. & W. 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Holt Insulation Ltd v Colt International Ltd Unreported July 23, 2001 LVO1 5929,
HC (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 514
Homepace Ltd v Sita South East Ltd [2008] EWCA Civ 1 . . . . . . . . . . . . . . . . . . . . . . . 173
Homer Burgess Ltd v Chirex (Annan) Ltd [2000] B.L.R. 124 . . . . . . . . . . . . . . . . . . . . 376
Hooper Bailie Associated Ltd v Natcom Group Ltd (1992) 28 N.S.W.L.R.
194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 493, 494
Horace Holman Group Ltd v Sherwood International Group Ltd [2001] All E.R.
(D) 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143, 144
How Engineering Services Ltd v Lindner Ceilings Floors Partitions Plc [1999] 2
All E.R. (Comm) 374; 64 Con. L.R. 67 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 506
Huddart Parker v Owners of the Mill Hill (The Mill Hill) (1950) 81 C.L.R. 502 . . . 488
Humber Oils Terminal Trs Ltd v Hersent Offshore Ltd (1981) 20 B.L.R.
16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 672, 673, 674
ICS v West Bromwich BS at 912 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T84
Imperial Cancer Research Fund v Ove Arup & Partners Ltd [2009] EWHC 1453
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T126, T129
Indian Airlines Ltd v GIA International Ltd [2002] EWHC 2361 (Comm) . . . . . . . . . 580
Interserve Industrial Services Ltd v Cleveland Bridge UK Ltd [2006] EWHC 741
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 379, 523, 524
Investors Compensation Scheme Ltd v West Bromwich Building Society (No.1)
[1998] 1 W.L.R. 896 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T84
Ipoh v TPS Property No 2 [2004] N.S.W.S.C. 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Islam v Ali [2003] EWCA Civ 612 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T121
James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970]
A.C. 583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
James Png Construction v Tsu Chin Kwan [1991] 1 M.L.J. 449 . . . . . . . . . . . . . . . . . . . . 63
Table of Cases
xiii
Jaura v Ahmed [2002] EWCA Civ 210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

Jaworsky v Frolich 850 p.2d 1052, 1054 (Okla. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
Jayaar Impex Ltd v Toaken Group Ltd (t/a Hicks Brothers) [1996] 2 Lloyds Rep.
437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T39
Jeancharm Ltd (t/a Beaver International) v Barnet Football Club Ltd [2003] EWCA
Civ 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571
Jervis v Harris [1996] Ch. 195 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 583
Jobsin Co UK Plc (t/a Internet Recruitment Solutions) v Department of Health [2001] EWCA Civ 1241; [2002] 1 C.M.L.R.
44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473, 474, 475, 476, 529, 539, 540, 542, 544, 546
Jobson v Johnson [1989] 1 W.L.R. 1026 CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580
John Doyle Construction Ltd v Laing Management (Scotland) Ltd 2004 S.C. 713;
[2004] B.L.R. 295 IH (Ex Div) . . . . . . . . . . . . . . . . . . . . . . . . . . 79, 82, 88, 89, 95, 260
John F Hunt Demolition Ltd v ASME Engineering Ltd [2007] EWHC 1507 (TCC);
[2008] 1 All E.R. 180; [2007] T.C.L.R. 6. . . . . . . . . . . . . . . . . . . . . . . . . . . . T94, T105
John Holland Construction & Engineering Pty Ltd v Kvaerner R J Brown Ltd
(1996) 82 B.L.R. 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
John Holland Pty Ltd v Roads and Traffic Authority of New South Wales [2006]
NSWSC 874 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229
John Mowlem & Co Plc v Hydra Tight Ltd (t/a Hevilifts) & Co Plc [2001] 17
Const L.J. 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Johnson v Gore Wood & Co (A Firm) [2002] 2 A.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . 521
Jones v St Johns College, Oxford (1870-71) L.R. 6 Q.B. 115 . . . . . . . . . . . . . . . . . 92, 94
Jones v Sherwood Computer Services [1992] 1 W.L.R. 277; [1992] 2 All E.R.
170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 174, 486
Jones v Smith [1999] 1 SCR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Joo Leong Timber Merchant v Dr Jaswant Singh a/l Jagat Singh [2003] 5 M.L.J.
116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Jordan v Employee Transfer Corp 509 So. 2d 420 (La. 1987) . . . . . . . . . . . . . . . . . . . . 446
KNS Industrial Services (Birmingham) Ltd v Sindall Ltd (2001) 3 T.C.L.R. 10;
(2001) 17 Const. L.J. 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Kaines (UK) Ltd v Osterreichische [1993] 2 LL. Rep. 1 . . . . . . . . . . . . . . . . . . . . . . . . . 147
Kellogg Brown & Root Inc v Concordia Maritime AG [2006] EWHC 3358 (Comm) 46
Kelly v Solari (1841) 9 M. & W. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T77
Kemayan Construction Sdn Bhd v Prestara Sdn Bhd [1997] 5MLJ 608 . . . . . . . . . . . . . 55
Kemble v Farren 1829 6 Bing 141 per Tindal CJ at 148 . . . . . . . . . . . . . . . . . . . . . . . . . 577
Kershaw v Whelan [1996] 1 W.L.R. 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
Keymed (Medical & Industrial Equipment) Ltd v Forest Healthcare NHS Trust
[1998] Eu. L.R. 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529, 538, 539, 546
Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd [2006] EWHC 848
(TCC); [2006] B.L.R. 315; [2006] C.I.L.L. 2353, QBD (TCC) . . . . . . . . . . . . . . . . 41
Kier Regional Ltd (t/a Wallis) v City and General (Holborn) Ltd (1),Cambridge
Gate Properties Ltd (2) and Temple Guiting Manor Ltd (No.2), [2008] EWHC
2454 (TCC). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 368, 375
Kleinwort Benson Ltd v Malaysian Mining Berhad [1988] 1 W.L.R. 799 . . . . . . . 25, 26
Laing ORourke v Transport Infrastructure [2007] N.S.W.S.C. 723 . . . . . . . . . . . . . . . . 493
Lamb (W) Ltd (t/a Premier Pump & Tank Co) v J Jarvis & Sons Plc (1998) 60
Con. L.R. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Larut Matang Supermarket Sdn Bhd v Liew Fook Yung [1995] 1 M.L.J. 379 . . . . . . 104
Lead Technologies Services Ltd v CMS Medical Ltd [2007] Adj. L.R. 01/30 CA . . 222
Lee v Mallam (1910) 10 SR (NSW) 876 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Lee v Showmans Guild of Great Britain [1952] 2 Q.B. 329 . . . . . . . . . . . . . . . . . . . . . 486
Leeson v Marsden [2008] EWHC 1011 (QB); (2008) 103 B.M.L.R. 49, QBD . . . . T131
Lewis v Axinn, 100 A.D.2d 617, 618, 473 N.Y.S.2d 575, 576 (1984) . . . . . . . . . . . . . 444
Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918]
A.C. 350 HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
xiv
Table of Cases
Liberty Mercian Ltd v Dean & Dyball Construction Ltd [2008] EWHC 2617
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 580
Lichter v Mellon-Stuart (1962) 305 F 2d 216, Federal Court of Appeals . . . . . . . . 88, 89
Liesbosch, The; Sub Nom: Owner of the Liesbosch v Owners of the Edison;
Liesbosch Dredger v SS Edison [1933] A.C. 449; [1933] All E.R. Rep. 144;
(1933) 45 Ll. L. Rep. 123, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Lillicrap v Nalder & Son [1993] 1 W.L.R. 94 . . . . . . 308, 311, 313, 316, 317, 318, 319
Lim Ting Guan v Goodlink Enterprise, Civil Appeal No.9 of 2003, May 25, 2004 . . 52
Linggi Plantations Ltd v Jagatheesan [1972] 1 M.L.J. 89 . . . . . . . . . . . . . . . . . . . . . . . . . 104
Lion Engineering Sdn Bhd v Pauchuan Development Sdn Bhd [1997] 4 A.M.R.
3315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109, 110
London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 B.L.R. . . . . . . . . . . . 88
London Underground Ltd v City Link Telecommunications Ltd [2007] B.L.R. 39179, 89
Lord v Lee (1867-68) L.R. 3 Q.B. 404 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495
Lord Elphinstone v Monkland Iron & Coal Co Ltd; Sub Nom Lord Elphinstone
v Markland Iron & Coal Co Ltd (1886) L.R. 11 App. Cas. 332, HL . . . . . . . . . . 572
Lordsvale Finance plc v Bank of Zambia [1996] QB 752 . . . . . . . . . . . . . . . 576, 577, 579
Luck (t/a G Luck Aboricultural & Horticultural) v Tower Hamlets LBC [2003]
EWCA Civ 52; [2003] Eu. L.R. 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 538
M Holleran Ltd v Severn Trent Water Ltd [2004] EWHC 2508 (Comm); [2005]
Eu. L.R. 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530, 542, 546
McConnell Archive Storage Ltd v Belfast City Council (unreported 2008) . . . . . . . . T23
McLaughlin and Harvey Ltd v Department of Finance and Personnel [2008]
N.I.Q.B. 25; [2008] T.C.L.R. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T16
McLoughlin v Jones [2002] 2 W.L.R. 1279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T59
Macro v Thompson (No.3) [2002] BCLC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Maggs (t/a BM Builders) v Marsh [2006] B.L.R. 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Makers UK Ltd v Camden LBC [2008] EWHC 1836 (TCC); [2008] B.L.R. 470;
120 Con. L.R. 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Mallett v McMonagle [1970] A.C. 166 HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 511
Mallozzi v Carapelli SpA [1975] 1 Lloyds Rep. 229 . . . . . . . . . . . . . . . . . . . . . . . 491, 492
Maniam v The State of Perak [1975] M.L.J. 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Mariner International Hotels Ltd v Atlas Ltd [2007] 1 HKLRD 413 (CFA (HK)) . . 349
Marion Henry v British Broadcasting corporation [2005] EWHC 2503 (QB) . . . . . . . 550
Mastropieri v Solmar Construction Co 159 A.D.2d 698, 699, 553 N.Y.S.2d 187,
188 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Mathind Ltd v E Turner & Sons Ltd (1989) 5 Const. L.J. 273 CA . . . . . . . . . . . . . . . . 589
Matra Communications SA v Home Office [1999] 1 W.L.R. 1646 . . . . . . . . . . . . . . . . 539
Mears v Safecar Security Ltd [1983] Q.B. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Medicaments and Related Classes of Goods, Re (No.2) [2001] 1 W.L.R.
700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 174, 175
Melville Dundas Ltd (In Receivership) v George Wimpey UK Ltd [2007] UKHL
18; 2007 S.C. (H.L) 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 672, 673, 674, 687, 690
Midland Expressway Ltd v Carillion Construction Ltd (No.1) [2006] EWCA Civ
936 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 685
Mivan Ltd v Lighting Technology Project, unreported 2001, IHL . . . . . . . . . . . . 515, 516
Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] A.C. 149 . . . . . . 84
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd [2007]
EWHC 447 (TCC); [2007] B.L.R. 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Multiplex Constructions Pty Ltd v Luikens [2003] NSWSC 1140 . . . . . . . . . . . . 251, 255
Murphy v Benson (1942) 42 S.R. (NSW) 66 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 485
Murray v Leisureplay Plc [2005] EWCA Civ 963 . . . 570, 571, 575, 576, 577, 578, 579
National Australia Bank Ltd v Soden [1995] B.C.C. 696 . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Naylor v Greenacres Curling Ltd 2001 S.L.T. 1092, Court of Session (Outer House)515
Nederlandse Reassurantie Groep Holding NV (NRG) v Bacon & Woodrow (No.1)
[1995] 1 All E.R. 976 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312, 313, 316, 317
Table of Cases
xv
New Zealand Shipping Co Ltd v A.M. Satterthwaite & Co Ltd [1974] 1 Lloyds
Rep 534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T37
Newtons of Wembley Ltd v Williams [1965] 1 Q.B. 560 . . . . . . . . . . . . . . . . . . . . . . . . . 500
Nigel Witham Ltd v Smith [2008] EWHC 12 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . T121
Nikko Hotels (UK) Ltd v MEPC Plc [1991] 2 E.G.L.R. 103 . . . . . . . . . . . . . . . . . . . . . 172
Northbuild Construction Pty Ltd v Discovery Beach Project Pty Ltd (2008) 24
B.C.L. 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 494, 496
Norwest Holst Construction Ltd v Co-operative Wholesale Society Ltd [1998] All
E.R. 61 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 510
Novamaze v Cut Price Deli (1995) 128 A.L.R. 540 . . . . . . . . . . . . . . . . . . . . . . . . . 485, 486
Outwing Construction Ltd v Thomas Weatherald Ltd 1999 WL 1048254 . . . . . . . . . . 293
Owen Pell Ltd v Bindi (London) Ltd, May 19, 2008 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
P&O Developments Ltd v The Guys & St Thomas NHS Trust [1999] B.L.R.
3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T104, T105
PT Building Services Ltd v Rok Build Ltd [2008] EWHC 3434 (TCC) . . . . . . . 513, 515
Paddington Churches Housing Association v Technical and General Guarantee Co
Ltd [1999] B.L.R. 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334, 505
Paragon Finance Plc (formerly National Home Loans Corp) v Freshfields [1999]
1 W.L.R. 1183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308, 314, 315, 316, 317, 318
Partenaire Ltd v Department of Finance and Personnel [2007] NIQB 100 . . . . T21, T22
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd 1 B.L.R. 111 . . . . . 66
Percy Trentham (G) Ltd v Archital Luxfer Ltd [1993] 1 Lloyds Rep. 25; 63
B.L.R. 44, CA (Civ Div) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T10, T37
Perar BV v General Surety & Guarantee Co Ltd (CA) 66 B.L.R. 72 . . . . . . . . . 332, 333
Philip Bernstein (Successors) Ltd v Lydiate Textiles Ltd [1962] CA . . . . . . . . . . 582, 583
Philips Hong Kong Ltd v Attorney General of Hong Kong 61 B.L.R. 41; (1993)
9 Const. L.J. 202, PC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 571, 573, 574, 575, 577, 578
Phillips Construction Co Inc v United States (1968) 184 Ct.Cl. 249, 394 F.2d 83488, 89
Picardi (t/a Picardi Architects) v Cuniberti & Cuniberti [2002] EWHC 2923
(TCC); [2003] B.L.R. 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
Piggot Foundations Ltd v Shepherd Construction Ltd [1993] 67 B.L.R. 48 . . . . . . . . 586
Pillar PG Ltd v D J Higgins Construction Ltd (1986) 10 Con. L.R. 46 CA . . . . . . . . 589
Plant Construction Plc v Clive Adams Associates (No.3) [2000] B.L.R. 205 . . . . . . . . 83
Porter v Magill [2002] 2 A.C. 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172, 174, 176
Pratt Contractors Ltd v Transit New Zealand (2003) B.L.R. 143 . . . . . . . . . . . . . . . . . . T23
Production Spray Painting and Panel Beating Pty Ltd v Newnham (No 2) (1992)
27 NSWLR 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Property & Land Contractors Ltd v Alfred McAlpine Homes (North) Ltd (1995)
47 Con. L.R. 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 505, 510
Public Works Commissioner v Hills [1906] A.C. 368 . . . . . . . . . . . . . . . . . . . 104, 572, 574
QH Tours Ltd v Ship Design & Management (Australia) Pty Ltd (1991) 105
A.L.R. 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 484
Quartzelec Ltd v Honeywell Control Systems Ltd [2008] EWHC 3315
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 361, 373, 378
Quietfield Ltd v Vascroft Contractors Ltd [2006] EWHC 174 (TCC); 109 Con.
L.R. 29; [2006] C.I.L.L. 2329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516, 517, 518, 521
Quinn v Burch Bros (Builders) Ltd [1966] 2 Q.B. 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
R (Morgan Grenfell & Co Ltd) v. Special Comr of Income Tax [2003] 1 AC 563 . . 318
R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002]
UKHL 23; [2002] 1 W.L.R. 1593 . . . . . . . . . . . . . . . . . . . . . . . . . . . 475, 476, 540, 542
R. v Portsmouth City Council Ex p. Bonaco Builders Ltd [1997] Eu.
L.R. 665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529, 537
R. (on the application of Buglife: The Invertebrate Conservation Trust) v Thurrock
Thames Gateway Development Corp [2008] EWCA Civ 1209 . . . . . . . . . . . . . . . 563
R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002]
UKHL 23; [2002] 1 W.L.R. 1593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 529
xvi
Table of Cases
RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland) Ltd

[2002] EWCA Civ 270; (2002) 18 Const. L.J. 425 [2002] B.L.R.
217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369, 688, 690, T8, T9, T10
RSL (South West) Ltd v Stansell Ltd [2003] EWHC 1390 (TCC) . . . . . . . . . . . . 376, 454
Regatta Condominium Association v Village of Mamaroneck 303 A.D.2d 737,
738, 758 N.Y.S.2d 348, 349 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 445
Reinwood Ltd v L Brown & Sons Ltd [2008] UKHL 12 . . . . . . . . . . . . . . . . . . . . 672, 673
Renco SpA v Council of the European Union (T-4/01) [2003] E.C.R 11-171 . . 458, 470
Re-Source America International Ltd v Platt Site Services [2004] EWCA Civ 665;
(2004) 95 Con. L.R. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
Richardson v Mellish (1824) 130 E.R. 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Risk Management Partners Ltd v Brent LBC [2008] EWHC 1094
(Admin) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 458, 475, 476, 540, 542
Roberts Petroleum Ltd v Bernard Kenny Ltd [1983] 1 W.L.R. 301 . . . . . . . . . . . . . . . . . 47
Robinson v United States 261 US 486; 43 S Ct. 420; 67 L.Ed 760 (1923) . . . . . . 87, 88
Robophone Facilities Ltd v Blank [1966] 1W.L.R. 1428; [1966] 3 All E.R. 128
CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 570, 573, 577, 578
Royal Brompton NHS Trust Ltd v Hammond [2002] 1 W.L.R. 1397 HL . . . . . . . . . . . 85
Royal Brompton Hospital NHS Trust v Hammond (No.1) [1999] B.L.R. 162;
(2000) 2 T.C.L.R. 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T105
Royal Brompton NHS Trust v Hammond (No.7) (2001) 76 Con. L.R. 148 . . . . . . . . . . 86
Ruginis v Rhode Island Contractors Registration Bd 2000 Wl 146520, at *5-6
(R.I. Super. Ct. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 447
Ruxley Electronics & Construction Ltd v Forsyth [1996] A.C. 344; (1995) 11
Const. L.J. 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
SIA Cesijas Darijumi v AS VENTSPILS TIRDZNIECIBAS OSTA (2008) a
decision of the Kurzeme Regional Court, case No C02064006 (not published) 272
SIAC Construction v Mayo CC (C-19/00) [2001] E.C.R. 1-7725 . . . . . . . . . . . . . 458, 470
SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] V.R. 391 . . . . . . . . . . . . . . . . . . . 91
SWI Ltd v P&I Data Services Ltd [2007] EWCA Civ 663 . . . . . . . . . . . . . . . . . . . . . . . 384
Sahib Foods Ltd v Paskin Kyriakides Sands (2003) 93 Con LR 1 . . . . . . . . . T100, T101
Sakinas Sdn Bhd v Siew Yik Hau [2002] 5 M.L.J. 497 . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Samuel Roberts Noble Found Inc v Vick 840 p.2d 619, 622-23 (Okla. 1992) . . . . . . 444
Santos Ltd v Pipelines Authority of South Australia (1996) 66 S.A.S.R. 38 . . . . . . . . 496
Sarwar v Alam. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .398
Sattin v Poole, unreported . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
Scott v Avery (1856) 5 H.L. Cas. 811 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486, 487
Scottish Coal Company Ltd v Kier Construction Ltd [2005] CSOH 74 . . . . . . . 587, 588
Sears, Roebuck & Co v Enco Assocs Inc 43 N.Y.2d 389, 394, 401 N.Y.S.2d 767,
770, 372 N.e.2d 555, 557 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 444
Selvakumar a/l Murugiah v Thiagarajah a/l Retnasamy [1995] 1 M.L.J.
817 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103, 104, 106, 107, 108, 111
Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Commissioners [2007] UKHL 34; [2008] 1 A.C. 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T15
Series 5 Software v Clarke [1996] 1 All E.R. 853 . . . . . . . . . . . . . . . . . . . . . . . . . . T20, T24
Severn Trent Plc v Dwr Cymru Cyfyngedig (Welsh Water Ltd) [2001] C.L.C.
107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 530, 542
Sherwood & Casson Ltd v Mackenzie (2000) 2 T.C.L.R. 418 . . . . . . . . . . . . . . . . 513, 514
Shimizu Europe Ltd v Automajor Ltd [2002] B.L.R. 113; (2002) 18 Const. L.J.
259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 376
Shimizu Europe Ltd v LBJ Fabrications Ltd [2003] EWHC 1229 (TCC) . 223, 224, 225
Siemens Building Technologies FE Ltd v Supershield Ltd [2009] EWHC 927
(TCC); [2009] T.C.L.R. 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T79
Skanska Construction (Regions) Ltd v Anglo Amsterdam Corp Ltd 84 Con. L.R.
100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346
Skanska Construction UK Ltd v ERDC Group Ltd 2003 S.C.L.R. 296 . . . . . . . . . . . . 513
Table of Cases
xvii
Smith, Hogg and Co Ltd v Black Sea and Baltic General Insurance Co Ltd [1940]
A.C. 997 HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Snelling v John G. Snelling Ltd [1973] 1 Q.B. 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
South Australian Railways Commissioner v Egan (1973) 130 C.L.R. 506 . . . . . . . . . . 486
Southampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk
Colombo) [2001] EWCA Civ 717; [2001] 2 Lloyds Rep 275 . . . . . . . . . . . . . . . . 135
Standard Chartered Bank v Pakistan National Shipping Corp (Assessment of
Damages) [2001] EWCA Civ 55; [2001] C.L.C. 825 . . . . . . . . . . . . . . . 143, 144, 145
Standard Chartered Bank v Pakistan National Shipping Corporation (Nos 2 and
4) [2003] 1 A.C. 959 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Stargas SpA v Petredec (The Sargasso) [1994] 1 Lloyds Rep. 412 . . . . . . . . . . . . . . . T95
State v Lundin, 91 A.D.2d 343, 345, 459 N.Y.S.2d 904, 906 (1983) . . . . . . . . . . . . . . 444
State of Kerala v United Slippers and Developer Ltd AIR 1982 Kerala 281 . . . . . . . . . 67
State of New South Wales v Banabelle Electrical Pty Ltd (2002) 54 N.S.W.L.R.
503; [2002] N.S.W.S.C. 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488, 489
Steele v Mooney [2005] EWCA Civ 96; [2005] 2 All E.R. 256 . . . . . . . . . . . . . . . . . T129
Steria Ltd v Sigma Wireless Communications Ltd [2008] B.L.R. 79 . . . . . . . . . . 261, 578
Strabag Benelux NV v Council of the European Union (T-183/00) [2003] ECR
11-135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 470
Strategic Publishing Group Pty Ltd v John Fairfax Publications Pty Ltd [2003]
N.S.W.S.C. 1134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 488
Sunshine Construction & Engineering v United States (2005) 64 Fed Cl 346 . . . . . . . 87
Surrey Heath BC v Lovell Construction Ltd (1988) 42 B.L.R. 25 QBD . . . . . . . 586, 588
T&T Fabrications Ltd v Hubbard Architectural Metalwork Ltd [2008] EWHC B7
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 372
Tak Ming Co v Yee Sang Metal Supplies Co [1973] 1 W.L.R. 300 . . . . . . . . . . . . . . . 371
Tate & Lyle Food & Distribution Ltd v Greater London Council [1982] 1 W.L.R.
149; [1981] 3 All E.R. 716 . . . . . . . . . . . . . . . . . . . 142, 143, 166, 167, 506, 508, 510
Technetronics Inc v Leybold Geaeus GmbH, Case No. 93-1254, United States
District Court, Eastern District of Pennsylvania (June 9, 1993) . . . . . . . . . . . . . . . 270
Temloc Ltd v Errill Properties Ltd (1987) 39 B.L.R. 30 . . . . . . . 109, 584, 585, 586, 589
Tennant Radiant Heat Ltd v Warrington Development Corp [1988] 1 E.G.L.R. 41
CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84, 94
Tew v Newbold-on-Avon United District School Board (1884) 1 Cab & El 260 . . . . . 92
Thomas Vale Construction Plc v Brookside Syston Ltd [2006] EWHC 3637670, 673, 675
Thompson v Charnock 101 E.R. 1310; (1799) 8 Term Rep. 139 . . . . . . . . . . . . . . . . . . 485
Three Rivers DC v Bank of England (No.6) [2005] 1 A.C. 610 . . . . . . . . . . . . . . 308, 318
Tilling v Whiteman [1980] A.C. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T59, T65
Tower Housing Association Ltd v Technical & General Guarantee Co Ltd 87
B.L.R. 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334, 335
Travis Pruitt & Associates, PC v Bowling 238 Ga. App. 225, 225, 518 S.e.2d 453,
454 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 446
Triarno Pty Ltd v Triden Contractors Ltd Unreported July 22, 1992 NSW Supreme
Ct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 489, 490
Tribe v Southdown Gliding Club Ltd [2007] EWHC 90080 (Costs) . . . . . . . . . . . . . . . 388
Trollope & Colls Ltd v Atomic Power Construction Ltd [1963] 1 WLR 333 . .T37, T39
Trollope & Colls Ltd v Northwest Metropolitan Regional Hospital Board [1973]
1 W.L.R. 601, HL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Trustees of the Stratfield Saye Estate v AHL Construction Ltd [2004] EWHC 3286
(TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T9
Turiff Construction Ltd v Regalia Knitting Mills [1971] 22 E.G. 169 . . . . . . . . . . . . . . . 26
Turner Corp Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd 1997
B.C.L. 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
United States v United Engineering and Constructing Co 234 U.S. 236, 242; 49
Ct.Cl. 689; 34 S.Ct. 843, 58 L.Ed. 1294 (1914) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
xviii
Table of Cases
Universal Tankships Inc of Monrovia v. International Transport Workers Federation [1983] 1 AC 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310
VGC Construction Ltd v Jackson Civil Engineering Ltd [2008] EWHC 2082 (TCC)372
VHE Construction Plc v RBSTB Trust Co Ltd [2000] B.L.R. 187; (2000) 70 Con.
L.R. 51; (2000) 2 T.C.L.R. 278, TCC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516
Van Uden Maritime BV (t/a Van Uden Africa Line) v Kommanditgesellschaft in
Firma Deco-Line (C-391/95) [1998] E.C.R. I-7091 . . . . . . . . . . . . . . . . . . . . . . . . . . 272
Venture Finance Plc v Mead [2005] EWCA Civ 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . T116
Versicherung AG v Risk Insurance & Reinsurance Solutions SA [2006] EWHC
42 [COMM]; [2006] All E.R. (D) 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144, 145, 164
Vita Food Products Inc v Unus Shipping Co Ltd (In Liquidation) [1939] A.C. 277 . 488
Vitpol Building Service v Samen [2008] EWHC 2283 (TCC) . . . . . . 365, 367, 374, 452
WN Hillas & Co Ltd v Arcos Ltd (1932) 147 L.T. 503 . . . . . . . . . . . . . . . . . . . . . . . . . . 491
Walford v Miles [1992] 2 A.C. 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 492
Wallace v United States (2004) 63 Fed Cl 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86, 87
Walter Lilly & Co Ltd v DMW Developments Ltd [2008] EWHC 3139 (TCC);
[2009] T.C.L.R. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366, T27
Wardrope v Dunne [1996] 1 Qd R 224 . . . . . . . . . . . . . . . . . . . . . . 313, 315, 316, 317, 318
Watkin Jones & Son Ltd v Lidl UK GmbH [2002] EWHC 183 (TCC); [2002]
C.I.L.L. 1847 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 516
Webb v Stenton (1882-83) L.R. 11 Q.B.D. 518, CA . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 45
Webster v Bosanquet [1912] A.C. 394, PC (Cey) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 572
West London Pipeline & Storage Ltd v Total UK Ltd [2008] EWHC 1296
(Comm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 553, 557, 559, 561
Wharf Properties Ltd v Eric Cumine Associates (No.2) (1991) 52 B.L.R. 8 . . . . . . . . . 88
William Verry Ltd v Camden LBC [2006] EWHC 761 (TCC) . . . . . . . . . . . . . . . . . . . . 682
Wilson (Birmingham) Ltd v Metropolitan Property Developments Ltd [1975] 2
All E.R. 814 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Wilson Smithett & Cape (Sugar) v Bangladesh Sugar and Food Industries Corp
[1986] 1 Lloyds Rep. 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Wimbledon Construction Company 2000 Ltd v Derek Vago [2005] EWHC 1086
(TCC); [2005] B.L.R. 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 51
Winterthur Swiss Insurance Co v AG (Manchester) Ltd (In liquidation) [2006]
EWHC 839 (Comm) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 548, 555, 556, 560
Woolley v Haden Building Services Ltd [2008] EWHC 90111 (Costs) . . . . . . . . . . . . 388
Workers Trust and Merchant Bank Limited v Dojap Investments Ltd [1993] AC 573574
Workplace Technologies Plc v E Squared Ltd [2000] C.I.L.L. 1607 . . . . . . . . . . . . . . . 453
Wraight Ltd v PH&T (Holdings) Ltd 13 B.L.R. 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 507
X Corporation v Y, unreported, May 16, 1997 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
Xstrata Queensland Ltd v Santos Ltd [2005] Q.S.C. 323 . . . . . . . . . . . . . . . . . . . . . . . . . 496
YCMS Ltd (t/a Young Construction Management Services) v Grabiner [2009]
EWHC 127 (TCC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 524, 689
Yukong Line v Rendsburg Investment Corporation of Liberia [1996] 2 Lloyds Rep
694 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . T62
xix
Table of Statutes 2009

1889 Factors Act (52 & 53 Vict
c.45) . . . . . . . . . . . . . . . . . . . . . 500
1945 Law Reform (Contributory
Negligence) Act 8 & 9
Geo 6 (c.28) . . . . . 85, 86, 89, 94
s.1(1) . . . . . . . . . . . . . . . . . . . . . . . . 85
1978 Judicature (Northern Ireland)
Act (c.23)
s.91 . . . . . . . . . . . . . . . . . . . . . . . . T20
Employment Protection (Consolidation) Act (c.44) . . . . . . . 46
Civil Liability (Contribution)
Act (c.47) . . 84, 86, 89, 94, T90
s.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
(1) . . . . . . . . . . . . . . . . . . . . . . . . . 84
1979 Sale of Goods Act (c.54) . 499, 500
s.25 . . . . . . 498, 500, 501, 502, 503
(1) . . . . . . . . . . . . . . . . . . . . . . . 500
1981 Supreme Court Act (c.54)
s.35A . . . . . . . . . . . . . . . . . . 146, 147
1982 Supply of Goods and Services
Act (c.29) . . . . . . . . . . . . . . . . T31
1991 Water Industry Act (c.56)
s.209 . . . . . . . . . . . . . . . . . . . 121, 123
1996 Arbitration Act (c.23) . . . . . . . . . . . . 4
s.1(a) . . . . . . . . . . . . . . . . . . . . . . . . 34
s.9 . . . . . . . . . . . . . . . . . . T108, T109
s.33. . . . . . . . . . . . . . . . . . . . . . . . .5, 6
s.34 . . . . . . . . . . . . . . . . . . . . . . . 5, 31
s.37 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
s.38(3) . . . . . . . . . . . . . . . . . . . . . . . . 6
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . 6
s.39 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
s.40 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
s.41 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
s.69 . . . . . . . . . . . . . . . . . . . . . . . . . 585
s.82(2) . . . . . . . . . . . . . . . . . . . . . . 270
Housing Grants, Construction
and Regeneration Act
(c.53) . . . 47, 48, 367, 369, 455,
512, 524, 591, 592, 605, 673,
684, 686, 688, 690, T11, T13
Pt.II . . 684, T8, T9, T10, T14, T15
ss 104-110 . . . . . . . . . . . . . . . . . . 672
1998
1999
1950
1984
1985
1999
s.106 . . . . . . . . . . . . . . 321, 365, 370

s.107 . 364, 370, 517, 688, T1, T2,
T3, T4, T7, T8, T9, T10,
T11, T14
(1) . . . . . . . . . . . . . . . . . . . . . . . . T8
(2) . . . . . . . . . . . . . . . . . . . . . T8, T9
(3) . . . . . . . . . . . . . . . . . . . . . . . . T9
(4) . . . . . . . . . . . . . . . . . . . . . . . . T9
s.108 . . . . . . . . . . . . . . 220, 222, 526
(1)(4) . . . . . . . . . . . . . . . . . . . . 512
(3) . . . . . . . . . . . . . . . . . . . 517, 518
(3A) . . . . . . . . . . . . . . . . . . . . . . 689
s.108A . . . . . . . . . . . . . . . . . . . . . . 689
s.108B . . . . . . . . . . . . . . . . . . . . . . 689
s.110 . . . . . . . . . . . . . . . . . . . . . . . . 685
(1A)(1D) . . . . . . . . . . . . . . . . 685
(2) . . . . . . . . . . . . . . . . . . . . . . . 685
s.110A . . . . . . . . . . . . . . . . . . . . . . 685
s.111 . . . . . . . . . 670, 671, 672, 673,
674, 687
(10) . . . . . . . . . . . . . . . . . . . . . . 687
s.112 . . . . . . . . . . . . . . . . . . . . . . . . 687
(3A) . . . . . . . . . . . . . . . . . . . . . . 687
s.113 . . . . . . . . . . . . . . . . . . . . . . . . 685
Human Rights Act
(c.42) . . . . . . . . . . . . . . . . 173, 174
Access to Justice Act (c.22)
s.29 . . . . . . . . . . . . . . . . . . . . . . . . . 552
Foreign Statutes
Malaysian Contracts Act . . . . . . . 115
s.74 . . . . . . . . . . . . . . . 109, 110, 113
s.75 . . . . . . . . . . 103, 104, 108, 109,
110, 111
Commercial Arbitration Act
(New South Wales) . . . . . . . . 494
(Victoria) . . . . . . . . . . . . . . . . . 494
(Western Australia) . . . . . . . . 494
Building and Construction
Industry Security of
Payment Act (NSW) . . 232, 242
s.3 . . . . . . . . . . . . . . . . . . . . . . . . . . 250
(3) . . . . . . . . . . . . . . . . . . . . . . . 252
(4) . . . . . . . . . . . . . . . . . . . . . . . 252
s.13 . . . . . . . . . . . . . . . . . . . . . . . . . 251
xx
Table of Statutes
s.14 . . . . . . . . . . . . . . . . . . . . . . . . . 251
s.15 . . . . . . . . . . . . . . . . . . . . . . . . . 251
s.16 . . . . . . . . . . . . . . . . . . . . . . . . . 251
s.22 . . . . . . . . . . . . . . . . . . . . . . . . . 251
s.23 . . . . . . . . . . . . . . . . . . . . 248, 251
s.24 . . . . . . . . . . . . . . . . . . . . . . . . . 251
s.25 . . . . . . . . . . . . . . . . . . . . . . . . . 251
(4) . . . . . . . . . . . . . . . . . . . . . . . 251
s.32 . . . . . 236, 237, 245, 248, 249,
251, 252, 254, 257
(1) . . . . . . . . . . . . . . . . . . . . . . . 252
(2) . . . . . . . . . . . . . . . . . . . . . . . 252
(3)(a) . . . . . . . . . . . . . . . . . . . . . 252
(b) . . . . . . . . . 238, 252, 253, 254
s.34 . . . . . 229, 231, 238, 241, 245,
251, 255, 257
(2) . . . . . . . . . . . . . . . . . . . . . . . 230
(a) . . . . . . . . . . . . . . . . . . . . . 254
(b) . . . . . . . . . . . . . . . . . . . . . 241
xxi
Table of Statutory Instruments

2009
1965 Rules of the Supreme Court SI
1965/1776
Ord.47 . . . . . . . . . . . . . . . . 38, 39, 51
Ord.53, r.4(1) . . . . . . . . . . . 475, 476
1998 Scheme for Construction Contracts (England and Wales)
Regulations SI 1998/649 . . . T12
Civil Procedure Rules SI
1998/3132 . . . . . . . . . . . . . 4, 6, 7,
323, 553, 675, T63, T120,
T121, T135
Pt.1 . . . . . . . . . . . . . . . . . . . . . . . . . T33
r.1.1 . . . . . . . . . . . . 6, 551, 561, 562,
T102, T129
r.1.1(2)(c)(iv) . . . . . . . . . . . . . . . . 562
r.1.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
r.1.4(2)(a) . . . . . . . . . . . . . . . . . . . . . 7
(e) . . . . . . . . . . . . . . . . . . . . . . T102
(f) . . . . . . . . . . . . . . . . . . . . . . T102
Pt.3 . . . . . . 549, 551, 557, 561, 562
Pt.7 . . . . . 323, 366, T28, T29, T32
r.7.5(1) . . . . . . . . . . . . . . . . . . . . T129
r.7.6 . . . . . . . . . . . . . . . . . T128, T129
(2) . . . . . . . . . . . . . . . . T129, T130
(3) . . . . . . . . . . . . . . . . . . . . . . T129
Pt.8 . . . . . 320, 321, 323, 364, 365,
366, 367, 368, 374, 449, 451,
455, 675, 682, T27, T28,
T29, T30, T31, T32, T33
Pt.18 . . . . . . . . . . . . . . 552, 553, 557
Pt.19 . . . . . . . . . . . . . . 549, 557, 562
r.19.1(1) . . . . . . . . . . . . . . . . . . . . 551
r.19.2(1) . . . . . . . . . . . . . . . . . . . . 552
r.19.4(1)(3) . . . . . . . . . . . . . . . . . 552
r.19.4(1) . . . . . . . . . . . . . . . . . . . . 562
r.19.5 . . . . . . . . . . . . . . . . . . . . . . . 552
r.19.10 . . . . . . . . . . . . . . . . . . . . . . 551
r.19.13 . . . . . . . . . . . . . . . . . . . . . . 551
r.23.9(3) . . . . . . . . . . . . . . . . . . . T126
Pt.24 . . . . . . . . . . . . . . 177, 368, T31
r.25.1225.15 . . . . . . . . . . . . . . . . 563
Pt.31 . . . . . . . . . . . . . . . . . . . . . . . . 549
r.31.14 . . . . . . . 547, 551, 554, 555,
556, 557, 558, 559, 560, 564
Pt.36 . . . . T118, T119, T120, T121

r.40.12 . . . . . . . . . . . . . . . . . . . . . . 371
Pt.43 . . . . . . . . . . . . . . . . . . . . . . . . 551
r.43.2(1) . . . . . . . . . . . . . . . . . . . . 551
Pt.44 . . . . . . . . . . . . . . . . . . 551, T118
r.44.3A . . . . . . . . . . . . . . . . . . . . . 552
r.44.4 . . . . . . . . . . . . . . . . . . . . . . . 400
r.44.15 . . . . . . . . . . . . . . . . . 551, 552
r.44.19 . . . . . . . . . . . . . . . . . . . . . . 563
Pt.44PD . . . . . . . . . . . . . . . . . . . . . 563
Pt.44PD13. . . . . . . . . . . . . . . . . . .551
Pt.44PD19 . . . . . . . . . . . . . . 562, 564
r.54.5 . . . . . . . . . . . . . . . . . . 475, 476
Pt.72 . . . . . . . 37, 38, 39, 46, 48, 50
r.72.2 . . . . . . . . . . . . . . . 42, 368, 375
r.72.4 . . . . . . . . . . . . . . . . . . . . . . . . 42
r.72.6 . . . . . . . . . . . . . . . . . . . . . 42, 43
(4) . . . . . . . . . . . . . . . . . . . . . . . . . 42
r.72.8 . . . . . . . . . . . . . . . . . . . . . 42, 48
2006 Public Contracts Regulations
SI 2006/5
reg.2 . . . . . . . . . . . . . . . . . . . . . . . . T22
(1) . . . . . . . . . . . . . . . . . . . 462, 470
reg.4(1) . . . . . . . . . . . . . . . . . . . . . 462
reg.6 . . . . . . . . . . . . . . . . . . . . . . . . 464
reg.8 . . . . . . . . . . . . . . . . . . . . . . . . 464
reg.14(2) . . . . . . . . . . . . . . . . . . . . 464
reg.15 . . . . . . . . . . . . . . . . . . . . . . . 462
reg.16 . . . . . . . . . . . . . . . . . . . . . . . 462
reg.17 . . . . . . . . . . . . . . . . . . . . . . . 462
reg.18(27) . . . . . . . . . . . . . . . . . . . 463
reg.19 . . . . . . . . . . . . . . . . . . . . . . T23
(2)(b) . . . . . . . . . . . . . . . . . . . . . 470
(4) . . . . . . . . . . . . . . . . . . . . . . . 471
(7)(b) . . . . . . . . . . . . . . . . 471, 472
(12) . . . . . . . . . . . . . . . . . . . . . . 472
reg.21(3) . . . . . . . . . . . . . . . 474, 476
reg.30 . . . . . . . . . . . . . . . . . . 462, 470
(1)(a) . . . . . . . . . . . . . . . . . . . . . 470
(2) . . . . . . . . . 457, 458, 469, 470
(9) . . . . . . . . . . . . . . . . . . . . . . . 464
reg.32(2) . . . . . . . . . . . . . . . . . . . . 474
(4) . . . . . . . . . . . . . . . . . . . . . . . 475
(14) . . . . . . . . . . . . . . . . . . . . . . 464
xxii
Table of Statutory Instruments

reg.33 . . . . . . . . . . . . . . . . . . . . . . . 464
reg.40 . . . . . . . . . . . . . . . . . . . . . . . 464
reg.47 . . . . . . . . . . . . . . . . . . . . . . . 475
(6) . . . . . . . . . . . . . . . . . . . . . . . 474
(7)(a) . . . . . . . . . . . . . . . . . . . . . 460
(b) . . . . . . . . . 458, 474, 475, 476
(8) . . . . . . . . . . . . . . . . . . . . . . . T20
(9) . . . . . . . . . . . . . T22, T23, T25

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Construction Law Journal

INCORPORATING TECHNOLOGY AND CONSTRUCTION LAW REPORTS

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(2009) 25 Const. L.J. 567-690 T.C.L.R. T123T136 (Case 10)

Construction Act Review

Case Law Subject Index

Aedas Architects Ltd v Skanska Construction UK Ltd

City & General (Holborn) Ltd v Structure Tone Ltd

Notes for Contributors

Adjudicator, Arbitrator and Barrister

General and Articles Editor

JULIAN HOLLOWAY, B.A.

SUSAN LINDSEY, R.I.B.A., F.C.I. Arb.,

International Case Note Editor

Barrister, Chartered Arbitrator

Book Reviews and Editorial

Construction Act Review

Technology and Construction Law Reports

School of Engineering and the Built Environment, University of Wolverhampton

JENNIE PRICE, LL.B.,

SALLY ROE, B.A.,

NEIL KAPLAN Q.C.,

HIS HONOUR JUDGE

Solicitor and Partner, Pinsent Masons

LL.B., M. Phil., Ph.D., M.C.I. Arb.,

THE RIGHT HONOURABLE

Barrister, Director, Major Contractors Group

Judge of the Technology & Construction Court

PETER WOOD, LL.B.,

Solicitor and Senior Resident Partner, Pinsent Masons, Manchester

Dispute Resolution in NEC3User Unfriendly?

Construction Act Review

Thomas Vale Construction Plc v Brookside Syston Ltd 675

Technology and Construction Law Reports

Construction Law Journal

Construction Law Journal

enforceability of liquidated damages that really determines the cases. Part B

Construction Law Journal

Construction Law Journal

of Appeal 13th March 1990). In each of these four cases there

McAlpine v Tilebox [2005] EWHC 281 at [48].

Construction Law Journal

Murray v Leisureplay [2005] EWCA Civ 963 at [55].

(iii) It is perhaps no longer entirely appropriate to ask whether a

Murray v Leisureplay [2005] EWCA Civ 963 at [106].

Construction Law Journal

Murray v Leisureplay [2005] EWCA Civ 963 at [114][118].

Construction Law Journal

B. Sum must be payable on breach of contract30

Export Credits Guarantee [1983] 2 All E.R. 205.

Construction Law Journal

which A undertook to reimburse C for any payments made by C to B. A

Export Credits Guarantee [1983] 2 All E.R. 205 at [224].

In another relevant case, Jervis v Harris,37 a lease contained a clause which

Construction Law Journal

C. Liquidated Damages as an exclusive remedy

Construction Law Journal

Chattan Developments [2007] EWHC 305 (TCC) at [14].

Keating on Construction Contracts, 2006, para.9-006.

Construction Law Journal

Scottish Coal v Kier [2005] CSOH 74 at [30].

the delaying event, may be recoverable notwithstanding the exhaustive nature

Temloc v Errill 39 B.L.R. 30 at 39.