It has been a busy year for construction lawyers so, just for a moment, forget the mince pies, advent calendar and carols. Here is a brief rundown of our top ten decisions from the Courts in 2019:
Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd / Cannon Corporate Ltd v Primus Build Ltd  EWCA Civ 27
Judgment: 24 January 2019
Adjudication and insolvency are mutually incompatible. Only in exceptional circumstances would a company in insolvent liquidation succeed in an adjudication, obtain summary judgment and avoid a stay of execution. Also a general reservation as to jurisdiction was likely to be ineffective if the objector knew of specific grounds for a jurisdictional objection or if made just to keep all options open.
Triple Point Technology Inc v PTT Public Co Ltd  EWCA Civ 230 Anchor 2020 Ltd v Midas Construction Ltd  EWHC 435 (TCC)
Judgment: 5 March 2019
In a contract where liquidated damages were calculated to the date that the employer accepted the work, the Court held this to mean the date when the employer accepted the completed work from the original contractor. The original contractor did not complete all of the work. The Court of Appeal concluded that liquidated damages did not apply to incomplete work.
Mears Limited v Costplan Services (South East) Limited and Others  EWCA Civ 502
Judgment: 29 March 2019
There are no hard and fast rules in relation to the concept of practical completion, but based on the facts of this case the following should be noted; practical completion is easier to recognise than to define; the existence of latent defects does not necessarily prevent practical completion; there is no difference between an outstanding item yet to be completed and a defective item that needed to be remedied and patent defects that are “trifling” will not prevent practical completion. Whether an item is “trifling” is a matter of fact and degree to be measured against the purpose of allowing the employer to take possession of the works and to use the items as intended.
Swansea Stadium Management Company Ltd v City & County of Swansea & Anor  EWHC 989 (TCC)
Judgment: 17 April 2019
The issue of a notice or certificate of making good defects has a deeming effect in that identified defects are deemed to have been made good. Whilst the issue of such a notice does not normally preclude a claim for damages for breach of contract, it may be sufficient evidence that an employer has enforced the terms of the building contract up to the point of issue.
Thomas & Anor v Taylor Wimpey Developments Ltd & Ors  EWHC 1134 (TCC)
Judgment: 9 May 2019
Home owners brought a claim for common law negligence against Taylor Wimpey in respect of an allegation that the log retaining walls at the rear of the back gardens of their properties were inadequately built and defective. The claim for common law negligence was dismissed. The Court held that the builder did not owe a duty of care to the home owners in tort in respect of pure economic loss.
Indigo Projects London Ltd v Razin & Anor  EWHC 1205 (TCC)
Judgment: 17 May 2019
Indigo applied for summary judgment to enforce the adjudicator’s decision in its favour but subsequently entered into a company voluntary arrangement (CVA). The Defendants contended that enforcement of the decision would undermine the proper operation of the CVA. The Court agreed and declined to enforce the adjudicator’s decision determining that to allow enforcement and require payment to Indigo which was now in a CVA would distort the process of accounting that is required under the CVA because the money would not be applied for the sole benefit of the Defendants but instead for the benefit of the creditors generally.
Willow Corp Sarl v MTD Contractors Ltd  EWHC 1591 (TCC)
Judgment: 25 June 2019
This case provides an example of where an adjudicator’s decision is capable of being severed on enforcement so as to remove those parts of the decision where the adjudicator had erred in law provided that the removal of that aspect of the decision did not affect the rest of the adjudicator’s decision.
The Lessees and Management Company of Herons Court v NHBC Building Control Services Ltd  EWCA Civ 1423
Judgment: 14 August 2019
This case highlights the uphill struggle a claimant will face when attempting to bring a claim against approved building inspectors. The Court of Appeal upheld the first instance decision that an approved building inspector does not owe a duty under the Defective Premises Act 1972.
Bennett (Construction) Ltd v CIMC MBS Ltd (formerly Verbus Systems Ltd)  EWCA Civ 1515
Judgment: 30 August 2019
The Court of Appeal held that contractual terms requiring payment “on sign-off” complied with the Housing Grants, Construction and Regeneration Act 1996. This decision also provides notable guidance on how the Courts will apply the Scheme to a contractual payment mechanism that is not fully compliant with the Construction Act and that it will endeavour to uphold the contractual mechanism if possible.
Manchikalapati & Others v Zurich  EWCA Civ 2163
Judgment: 5 December 2019
The Court of Appeal upheld the first instance decision in relation to the interpretation of Zurich Standard 10 New Home Structural Defects Insurance Policy and the judgements in this case should be reviewed in the event a claim under the Zurich policy is being considered.
Wishing you a Merry Christmas from the Edwin Coe Construction team.
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