Construction
Tim regularly acts in construction disputes – in particular in respect of evidentially and legally complex TCC claims and adjudications (both under the Scheme for Construction Adjudication and under ad hoc rules) including multi-million-pound interim application “smash and grab” claims and TCC enforcement proceedings, as well as in appeals to the Court of Appeal.
Hirst & Another v Dunbar and Others [2022] EWHC 41 (TCC); 201 Con L.R. 71: – Tim acted for the Claimant, in a claim for sums expended on the renovation / completion of a number of properties situated on a development site that had been purchased out of administration (with the money provided from the first defendant). Any agreement between the Claimant and Defendants for payment relied on an oral contract said to have been entered into in early 2011. However, no serious attempts to claim the monies was made until 2014. The Defendants asserted that not only had there never been an agreement to pay the Claimants for the works (as this was undertaken at their own risk) but the claim was also time barred. The Common law rule that the claim arose once the works were substantially completed and that had been late 2012.
The importance of the case lies in its consideration of (albeit obiter) the limitation issue. It was the Claimants position that quantification of the sum owed under Part 2 of the Scheme for Construction Contracts effectively acted as a condition precedent on the right to bring a claim – in same way that third-party certification applied to extend the effective limitation period for the claim in Henry Boot Construction Ltd v Alstom Combined Cycles [2005] EWCA 814.
The Court concluded that the Scheme did not affect the Common law rule that the claim arose once the works were substantially completed. The Scheme provided a process for determining the sum to be paid and when it should be paid, rather than acting as a condition precedent on the right to be paid at all.
Payne & Payne v Crest Nicholson Operations Ltd. (Claim No. HT-2021-000449) – TCC: – Tim acted for the Claimants who were proprietors of a luxury new build property designed and built by the defendant and sold essentially off-plan via a marketing brochure. The property was alleged to be subject to numerous serious defects – including breaches of building regulations in relation to the radon ventilation system. Those defects had been rectified but over a number of years and with serious disruption to the lives of the claimants.
The claimants sought “blight” damages in respect of the property, together with damages for distress and inconvenience caused by the remedial works. All claims have now been settled via mediation.
PBS Bester AS v Bester Generation UK Ltd [2020] EWCA 404; [2020] 4 All E.R. 1101; [2020] B.L.R. 355; [2020] Bus. L.R. 1626: – This appeal arose out of the TCC’s refusal to grant PBS Energo summary enforcement of an adjudicator’s award of around £1.7 million, in circumstances where it later transpired that the appellant might have obtained the adjudicator’s award through misrepresentations (potentially fraudulent misrepresentations).
The CA confirmed the previous authority that where allegations of fraud were raised in the adjudication and failed and equally where fraud could / should have been raised in the adjudication but was not, then fraud could not then be raised in the enforcement proceedings.
The CA then had to address the effect (if any) of the TCC’s accelerated enforcement procedure under rule 9.2.4 (2nd Ed TCC Guide) on CPR 24.2(4) – summary judgment. The Court concluded that the terms of the TCC Guide could not modify the clear wording of CPR 24, which provided that a defendant did not need to file a defence where summary judgment had been applied for prior to the deadline for the filing of a defence. Albeit the Court was of the view that where fraud was to be alleged it would be best if this allegation were to be set out in formal pleadings.
Redstock Homes Ltd v NHBC and Thatching Advisory Service (UK) Ltd. (Claim No. HT 2020-00306) – TCC – Tim was instructed on behalf of the Claimant (builder) in relation to a claim against TAS – as the suppliers of a proprietary fireproof Sorel cement board that was allegedly unfit for purpose- and NHBC who provided the their warranty to cover works undertaken by Redstock but it is alleged by Redstock had actually recommended / required the use of the TAS boards by Resdstock. NHBC counterclaimed against the Redstock and its directors for the costs of the remdial works undertaken in accordance with the terms of the NHBC cover. The central issue in the case is whether fireproof Sorel cement boards supplied by TAS were fit for purpose. All claims and counterclaims were settled via mediation.
Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWCA Civ 2695 – successfully acted for Aygun in resisting an appeal seeking to challenge Fraser J.’s first instance decision to add to the Wimbledon v Vago principles applying to stay applications in respect of adjudication enforcement claims and clarifying the applicability of evidence of fraud allegations in relation to granting such stays. A subsequent application to the TCC to lift the stay was also refused: [2019] EWHC 3619 (TCC).
Gosvenor London Ltd v Aygun Aluminium UK Ltd [2018] EWHC 227 (TCC); [2018] Bus. L.R. 1439; [2018] B.L.R. 353; 177 Con. L.R. 127 – acted for Aygun in resisting a claim for enforcement of a substantial adjudication award where Fraser J. added new principle “g” to the long-standing Wimbledon v Vago stay jurisdiction and considered the evidence relevant to the Court granting a stay under the new principle – including allegations of fraud that could or should have been raised in the adjudication.
Brown & Brown v Complete Building Solutions Ltd. [2016] EWCA Civ 1; [2016] B.L.R. 98; [2016] 164 Con. L.R. 21 – representing the Appellants in an appeal against a summary judgment entered in respect of an adjudicator’s award under the HGCRA 1996 and Scheme for Construction Contracts. The Appellants having refused to meet the judgment sum as the adjudicator’s decision was – in their view – made in respect of a dispute that was the same or substantially the same as one previously unsuccessfully pursued by the respondent in an earlier adjudication – and was therefore barred under the terms of paragraph 9(2) of the Scheme.