My recent joint article published by Construction Law, in which we examine case law surrounding the role of expert witnesses, which suggests a worrying trend towards a loosening of the established principles in terms of how experts should behave.
Construction Law
Technology keeps the court wheels turning
My recent joint article with Chris Bryden published by Construction Law
Key points:
- Conversant Wireless Licensing SARL v Huawei Technologies Co. Ltd and other companies [2020] EWHC 741 (Pat)- High Court allows application to adjourn complex trial in light of COVID-19. In particular, there was no provision within the CPR to allow such a trial to be conducted on the papers, and it was not appropriate to do so in the circumstances.
- Re One Blackfriars Ltd (in liquidation) [2020] EWHC 845 (Ch) (06 April 2020)- High Court rejects application to adjourn a trial, which was to proceed remotely even with a number of expert witnesses in addition to witnesses of fact. It was held that, to do so, was not to proceed in a manner incompatible with current government guidance.
- MillChris Developments Ltd v Waters (2020)- The TCC (remotely) rejected an application to injunct on-going adjudication proceedings on the basis of COVID-19. l In the absence of clear and causally linked evidence, it appears as though parties seeking to restrain on-going adjudication proceedings on the basis of COVID-19, will find little favour from the Courts.
- The situation and guidance is fast-paced and frequently changing and it is clear that the workings of the justice system are having to (and with a degree of success) adapt quickly.
- Preparation is paramount, and parties will need to ensure that they and their legal advisors are taking steps to ensure that the remote process runs as smoothly as it can.
The Corporate Veil in a Construction Context
My recent joint article with Chris Bryden in Construction Law:
Key Points:
- The concept of limited liability plays an important role in corporate life.
- But it shields director from the misery felt along the supply chain in the event of insolvency.
- Claims can sometimes be pursued however against directors.
- Case law suggests that true instances of piercing the corporate veil will be rare.
- Insolvency will usually mean that the supplier loses out, as a consequence of the greater good of limited liability from a macroeconomic perspective.
The Corporate Veil in a Construction Context
The corporate veil in a construction context
Barristers Chris Bryden and Georgia Whiting, Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, explain why limited liability – shielding directors of failed companies behind the corporate veil, while exposing others to suffering – is a necessary double sided coin.
Published by Construction Law (clink on link above for full article)
The Perennial Problem of Pure Economic Loss
The perennial problem of pure economic loss
Not being able to recover economic loss is an issue constantly bedevilling construction. Barristers Chris Bryden and Georgia Whiting of the Chambers of Timothy Raggatt QC, 4 King’s Bench Walk, analyse why it is a particular problem for large multi-party projects.
Published by Construction Law (click on above link for full article).
Fracking case law and its relevance to construction
My recent joint article published in Construction Law (LinkedIn account required):
My recent article: Limitation—revisiting the date of knowledge under section 14A (UK Insurance Ltd v Carillion).
CA 1093 – UK Insurance Ltd v Carillion
The case UK Insurance v Carillion Specialist Services provides a helpful reminder of the courts’ approach to determining the requisite date of knowledge for the purposes of section 14A of the Limitation Act 1980. The court held that the application of this provision resulted in the relevant claim in this case being wholly time-barred and awarded summary judgment in favour of the second defendant.
First published by LexisNexis on 04/07/2019
Pre-emptive injunctive relief against persons unknown (Boyd and another v Ineos Upstream Ltd).
Case Analysis 1006 – Boyd v Ineos Upstream Ltd
The Court of Appeal decision in Boyd and another v Ineos Upstream Ltd concerned whether the judge was correct to grant injunctions against persons unknown, secondly, whether the judge failed to consider section 12 (3) of the Human Rights Act 1998 (HRA 1998), and thirdly, whether the judge was right to grant an injunction restraining conspiracy to harm the claimants by the commission of unlawful acts against contractors engaged by the claimants. The appeal was successful in part and is of most interest in its analysis in respect of claims against persons unknown, permissible in this context. The case also confirms the importance of ensuring the terms of an injunction are clear and concise.
First published by LexisNexis on 8 April 2019
Adjudication Update: South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61 (TCC)
The recent TCC case of South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61 (TCC), serves as a timely reminder that the courts take a pro-enforcement approach in respect of adjudicators’ decisions and also considers the hierarchy between enforcement and a statutory moratorium as per the Insolvency Act 1986.
In South Coast Construction Ltd, Coulson J was faced with two applications. The first, a relatively straightforward matter, in that the Claimant wished to enforce a decision reached by an adjudicator. These proceedings were defended on the basis of a lack of jurisdiction. The second application related to the belated discovery that the Defendant had issued no fewer than three Notices of Intention to Appoint an Administrator (‘NOI’).
The reference to belated stems from the fact that the Defendant, two days before the listed hearing, wrote to the Court enclosing an NOI dated 4 January 2016. The first two NOI’s which had been issued had also neither been disclosed to the Court nor the Claimant. Coulson J was particularly critical of the fact that the Solicitor for the Defendant had been aware of the third NOI since 5 January 2017, but had not disclosed the same until 16 January 2017.
Crucially, the third NOI gave rise to a moratorium on other legal proceedings due to expire at the close of business on the day of the hearing. Coulson J gave his judgment on the following day, which was after the expiry of the moratorium, and also after the directors of the Defendant had resolved to put the company into liquidation. As such, the question of whether or not the enforcement proceedings should be stayed was not technically necessary to decide. However, Coulson J considered that it was appropriate to deal with this matter for a number of reasons, including the fact that the issue potentially had wide ramifications, and as such, may be of relevance to a number of other cases in the following months.
Coulson J outlined that the principles to be applied in terms of whether or not the court should exercise its discretion to continue the proceedings could be grouped into the following subcategories:
(1) General;
(2) The State of Proceedings; and
(3) Considerations of Conduct.
Coulson J confirmed that he would have allowed the enforcement proceedings to continue based upon a strict interpretation of the case law outlined in respect of the above subcategories. However, he also held that he reached his conclusion based upon a consideration of the separate principles applicable to adjudication enforcement. The following key points can be distilled from the judgment.
- By reference to the case of Re Atlantic Computer Systems PLC [1992] CH 505, the relevant balancing exercise favoured the claimant continuing with the enforcement proceedings. In particular, there was no evidence that the purpose of the moratorium, namely, to provide assistance to the administrators, would be jeopardised if the decision in terms of jurisdiction were made. In fact, it was considered that such a decision would assist the administrators in that they would have an answer to the only dispute between the parties.
- When considering the question of fairness and conduct, it would be inequitable if the court did not give judgment in respect of the jurisdictional issue. The Claimant had acted properly throughout, and at considerable expense, had obtained a lengthy adjudicator’s decision. In contrast to the behaviour of the Claimant, Coulson J outlined that:
‘On the material before the court I conclude that, on the balance of probabilities, the conduct to which I have referred means that the defendant has been playing somewhat of a deliberate double game: the paucity of information in the NOIs; the failure to appoint an administrator despite 3 such NOIs; and the failure to disclose the NOIs to the claimant and the court, all inexorably point to that conclusion.’
- In terms of the second, separate reason for reaching his conclusion, Coulson J referred to the nature and purpose of adjudication, as aptly summarised by Chadwick LJ in Carrillion Construction Ltd v Royal Devonport Dockyard [2005] EWCA Civ 1358. Coulson J observed that adjudication enforcement proceedings, such as those in question, presuppose that there has already been a decision, on the merits, that there is a sum of money which, prima facie, is due and owing under contract or statute. As such, where all that remains is an enforcement hearing, he considered that this would meet the ‘exceptional’ test as laid down by Patten J in AES Barry Limited v TXU Europe Energy Trading [2004] EWHC 1757 (Ch).
The decision provides clear guidance that adjudication enforcement proceedings are likely to take priority over a statutory moratorium as per the Insolvency Act 1986.
Find the full decision at http://www.bailii.org/ew/cases/EWHC/TCC/2017/61.html
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The information and any commentary on the law contained on this web site is provided for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by the author. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site.
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