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Construction case tracker—2015

The Construction case tracker 2015 is a list of key decisions in 2015 relevant to construction lawyers. It
covers and collates cases from 1 June 2015 (in reverse chronological order).
Public procurement cases of particular relevance to construction lawyers are included in this tracker. For
public procurement cases more generally, see: UK public procurement case tracker and EU public
procurement case tracker.
To keep up-to-date with the status of cases on appeal, see: Construction future developments tracker—
Appeal cases.
See also:

1  Construction case tracker—2017

2  Construction case tracker—2016

December 2015
Case
Fulton Shipping Inc of Panama v
Globalia Business Travel SAU
(formerly Travelplan SAU) of
Spain
[2015] EWCA Civ 1299
C&S Associates UK Ltd v
Enterprise Insurance Company
plc
[2015] EWHC 3757 (Comm)
Judgment date Key facts
21 December 2015 Repudiation/damages: The Court
of Appeal, allowed an appeal
regarding the measure of damages
to be assessed following the ship
charterers' repudiatory breach of
contract. The court held that if a
claimant adopted by way of
mitigation, a measure which arose
out of the consequences of the
breach and was in the ordinary
course of business and such
measure benefited the claimant,
that benefit was normally to be
brought into account in assessing
the claimant's loss unless the
measure was wholly independent
of the relationship of the claimant
and defendant. See News Analysis:
Court of Appeal—reduction in
damages where claimant benefits
in mitigating loss (Fulton Shipping v
Globalia).
21 December 2015 Repudiation: The Commercial
Court gave judgment on seven
preliminary issues concerning the
termination of a contract, pursuant
to which the claimant had provided
claims handling services to the
defendant insurance company. The
preliminary issues concerned,
among other things, repudiation

RMP Construction Services Ltd v
Chalcroft Ltd
[2015] EWHC 3737 (TCC)
Counted4 Community Interest
Company v Sunderland City
Council
[2015] EWHC 3898 (TCC)
Fahstone Limited v Biesse Group
UK Limited
[2015] EWHC 3650 (TCC)
Page 3
and variation of the contract. See
News Analyses: When does the
cumulative effect of breaches
amount to repudiation? (C&S
Associates v Enterprise Insurance)
and Tactical strategy leads to
irrecoverable costs (C&S
Associates v Enterprise Insurance
Company).
21 December 2015 Adjudication enforcement: The
TCC held that although the
adjudicator decided that he had
jurisdiction under one contract,
when actually he had jurisdiction
under a different contract, this did
not stop the decision being
enforced. This was so even when
the choice of contract would have
led to a different factual outcome.
See News Analysis: Adjudication
enforcement—wrong conclusion
under the wrong contract (RMP
Construction Service v Chalcroft).
18 December 2015 Public procurement/interim
order: The TCC refused an
application under the Public
Contracts Regulations 2015, (PCR
2015) SI 2015/102, reg 96(1) of for
an interim order to lift the automatic
suspension of a contract awarded
following a procurement process
which is subject to a challenge by
an unsuccessful bidder. Although
this case essentially turns on its
facts, construction lawyers should
note this application of the
principles set out in American
Cyanamid to PCR 2015, SI
2015/102, reg 96. See News
Analysis: In brief—Lifting of
automatic suspension of contract
refused (Counted4 Community
Interest v Sunderland City Council).
18 December 2015 Adjudication enforcement: The
TCC refused to grant summary
judgment to enforce an
adjudicator’s decision. It held that
there was a triable issue as to
whether a structure formed part of
land and so fell within the definition
of a ‘construction operation’ under
section 105 of Housing Grants,
Construction and Regeneration Act
1996 (HGCRA 1996). See News
Analysis: Adjudication

Bibby Factors Northwest Limited v 17 December 2015
HFD Limited and another
[2015] EWCA Civ 1908
London Borough of Bromley v
Heckel
[2015] EWHC 3606 (TCC)
Persimmon Homes Ltd v Ove
Arup and Partners Ltd & another
[2015] EWHC 3573 (TCC)
Marks and Spencer plc v BNP
Paribas Services Trust Company
(Jersey) Limited & another
[2015] UKSC 72
Page 4
—'construction operations' and the
impact of hire purchase
agreements (Fahstone v Biesse
Group UK).
Equitable set-off/debtor's cross-
claim: The Court of Appeal held
that where the factor (funder) had
failed to stipulate with the supplier
that there should be no rebate and
had not requested the debtor to
advise of any rebate, there was no
obligation on the debtor to inform it
as to any such pre-existing
contractual arrangements
concerning the debt. See News
Analysis: Court of Appeal permits
rebate cross-claim by way of
equitable set off in debt-factoring
(Bibby Factors v HFD Limited).
10 December 2015 Disclosure: The TCC dismissed
two applications made by the
claimant in relation to defects in a
construction project. The court held
that the application for disclosure of
documents was hopeless, and
there was no justification for
allowing its application to extend
time for service of the particulars of
claim. See News Analysis: Practical
considerations when making
applications (London Borough of
Bromley v Heckel).
8 December 2015 Contract interpretation/exclusion
clauses: The TCC ruled on
preliminary issues in relation to the
discovery of asbestos
contamination on a development
site. These related to the key
agreements between the parties,
and an exclusion clause which
related to any claim in relation to
asbestos. See News Analysis: In
brief—interpreting parties'
intentions and exclusion of liability
(Persimmon Homes v Arup).
2 December 2015 Implied terms: The Supreme
Court decided that a term that the
rent be repaid to the tenant could
not be implied into four leases. It
confirmed there are two types of
contractual implied term: (i) those
implied into a particular contract, in
the light of the express terms,
commercial common sense, and
the facts known to both parties at

MJ Harding trading as MJ Harding 1 December 2015
Contractors v Paice & another
[2015] EWCA Civ 1231
Wattret & another v Thomas
Sands Consulting Ltd
[2015] EWHC 3455 (TCC)
November 2015
Case
Severfield (UK) Ltd v Duro
Felguera UK Ltd
[2015] EWHC 3352 (TCC)
Mi-Space (UK) Ltd v Bridgwater
Civil Engineering Ltd
[2015] EWHC 3360 (TCC)
Page 5
the time the contract was made;
and (ii) implied by the law unless
such a term is expressly excluded
(eg statute or common law). See
News Analysis: Supreme Court
dismisses Marks and Spencer's
appeal for repayment of overpaid
rent following lease break.
Adjudication: The Court of Appeal
held (dismissing the contractor’s
appeal) that where a party fails to
issue a valid pay less notice and
loses an adjudication on that basis,
it can start a fresh adjudication on
the question of valuation. See
News Analysis: Court of Appeal
confirm ability to adjudicate on
valuation despite earlier
adjudications (Harding v Paice).
1 December 2015 Expert evidence: The TCC
allowed the defendant’s application
to adduce expert evidence in a
professional negligence case
regarding chartered quantity
surveyors advising on construction
disputes. See News Analysis:
Adducing expert evidence in a
professional negligence claim
(Wattret v Thomas Sands
Consulting Limited).
Judgment date Key facts
24 November 2015 Application of
HGCRA 1996/Construction
operations: The TCC refused a
summary judgment application
relating to a hybrid contract
(construction operations and
excluded operations under HGCRA
1996, s 105. The claimant could
not rely on a previous lack of a pay
less notice where the sum now
claimed was not identified in the
original payment application. See
News Analysis: Claiming payment
in hybrid contracts for construction
operations and excluded
operations (Severfield v Duro).
20 November 2015 Adjudication enforcement: The
TCC refused to enforce an
adjudicator’s decision, holding that
an agreement reached by email,

Seeney & another v Gleeson
Developments Ltd and another
[2015] EWHC 3244 (TCC)
Van Oord UK Ltd & another v
Allseas UK Ltd
[2015] EWHC 3074 (TCC)
Cavendish Square Holding BV v
Talal El Makdessi
ParkingEye Limited v Beavis
[2015] UKSC 67
Page 6
settling the claim, made prior to the
adjudication meant that the
decision had no effect. See News
Analysis: In brief—Settlement
reached by email exchange (Mi-
Space v BCE).
16 November 2015 Agreement of variations: The
TCC granted summary judgment
on part of the claimant’s claim
holding that a binding agreement
had been made by email as to the
total value of additions/variations
payable by the claimants. See
News Analysis: In brief—Binding
agreement on variations (Seeney v
Gleeson).
12 November 2015 Ground conditions/obtaining
permissions: The TCC considered
whether the contractor on an
energy project should have
foreseen the ground conditions that
it encountered and the employer's
liability where it failed to procure
permission for the contractor's
temporary works and delayed in
obtaining permission relating to the
contract works. See News Analysis:
In brief—Ground conditions and
obtaining permissions (Van Oord v
Allseas).
The TCC considered Part 36 offers
and gave an order for costs in a
separate hearing ([2015] EWHC
3385 (TCC)). See News Analysis:
When is a Part 36 offer on a
counterclaim not a claimant's Part
36 offer for CPR 36.17 costs
consequences? (Van Oord UK v
Allseas UK).
4 November 2015 Penalty clauses: The Supreme
Court reviewed the development of
the law of penalties in two
associated cases, and clarified a
broader test in assessing whether a
clause is an unenforceable penalty
(rather than the traditional
dichotomy between a penalty and a
genuine pre-estimate of the
innocent party’s loss). The
questions to be asked under the
new test are: (i) whether the
penalty rule is engaged at all, (ii)
whether there is a legitimate
interest served and protected by
the clause, and (iii) whether the

Chliaifchtein v Jessop
[2015] EWHC 3167 (TCC)
October 2015
Case
Harlequin Property (SVG) Ltd and 29 October 2015
another v Wilkins Kennedy (a
Firm)
[2015] EWHC 3050 (TCC)
GBM Minerals Engineering v GB
Minerals Holdings (No. 2)
[2015] EWHC 3091 (TCC)
Page 7
provision purporting to serve that
interest is out of proportion (by
being extravagant, exorbitant or
unconscionable)? If the answer to
all of these questions is 'yes', then
the clause is likely to be an
unenforceable penalty. See News
Analysis: ParkingEye and El
Makdessi—Supreme Court clarifies
penalty rule.
2 November 2015 Transferring to the TCC: The
TCC refused to transfer a claim
from the Central London County
Court to the High Court,
emphasising the guidance in West
Country [2012] EWHC 307 (TCC).
Judgment date Key facts
ATE Insurance: The TCC
dismissed an application by the
claimants to vary an order for
security for costs to take account of
the claimants' increased
disbursements—holding that it had
no power to do so where the
parties had amended an after-the-
event (ATE) policy offered by the
claimants as security following an
earlier judgment. The court also
ordered inspection of documents
previously withheld on public
interest and confidentiality grounds.
See News Analysis: Court
considers varying security for costs
by ATE and withholding confidential
documents from inspection
(Harlequin Property v Wilkins
Kennedy).
28 October 2015 Costs/Amendment to pleadings:
The TCC held that each party
would have to bear its own costs of
the hearing, issuing a warning to
parties who engage in persistent
and ‘opportunistic litigation’ that
they may find the court decides not
to award costs. See News Analysis:
Costs warning to ‘opportunistic
litigants’ (GBM Minerals
Engineering Consultants v GB
Minerals Holding).

Amey Birmingham Highways v
Birmingham City Council (No 2)
[2015] EWHC 2994 (TCC)
The Dorchester Group Limited v
Kier Construction Limited
[2015] EWHC 3051 (TCC)
Science and Technology Facilities 21 October 2015
Council v MW High Tech Projects
[2015] EWHC 2889 (TCC)
GBM Minerals Engineering v GB
Minerals Holdings
[2015] EWHC 2954 (TCC)
Page 8
adjudicator: The TCC refused to
order delivery up, where an
adjudicator had declared that ICI
was entitled to documents but
made no order for delivery up. See
News Analysis: Party ‘entitled’ to
documents, but no order for
delivery up, in TCC adjudication
enforcement proceedings (ICI v
Merit Merrell).
22 October 2015 Drafting guidance: The TCC
provided some guidance on the
drafting of statements of agreed
facts, whose purpose was to
reduce the weight of evidence and
documentation provided to the
court. See News Analysis: TCC
gives guidance on producing
statements of agreed facts (Amey
Birmingham Highways v
Birmingham CC).
21 October 2015 Admissions made after
commencement of proceedings:
The TCC declined to give judgment
in favour of the claimant on the
basis of an open offer made by the
defendant which the claimant
argued was a formal admission
pursuant to CPR 14.1. See News
Analysis: Admissions made after
commencement of proceedings
(The Dorchester Group Limited v
Kier Construction Limited).
Adjudication
enforcement/jurisdiction of
adjudicator: The TCC enforced an
adjudication decision, dismissing
arguments that the GC/Works/1
standard form of contract with
Amendment 1 (2000) was non-
compliant with the HGCRA 1996.
See News Analysis: TCC rejects
defendant ‘scrabbling around’ to
avoid adjudication enforcement
(Science and Technology Facilities
Council v MW High Tech Projects).
21 October 2015 Amendments to pleadings: The
TCC allowed applications from both
parties to amend their pleadings at
a very late stage, causing the trial
date to be vacated. See News
Analysis: In brief—Late
amendments to pleadings allowed
(GBM Minerals Engineering v GB
Minerals Holdings).

William Clark Partnership Limited
v Dock St PCT Limited
[2015] EWHC 2923 (TCC)
Bloomberg LP v Sandberg (a firm) 16 October 2015
[2015] EWHC 2858 (TCC)
Husband and Brown v Mitch
Developments
[2015] EWHC 2900 (TCC)
Wilson & Sharp Investments Ltd v 13 October 2015
Harbour View Developments Ltd
[2015] EWCA Civ 1030
Lloyds Bank v McBains Cooper
Consulting
Page 9
16 October 2015 Particularisation of losses: Claim
for damages for professional
negligence. TCC considered law
relating to abatement and global
claims and found inadequate
particularisation of losses in
claimant's case. See News
Analysis: In brief—Inadequate
particularisation of losses (William
Clark Partnership Limited v Dock St
PCT Limited).
Contribution claim: An application
to strike out Part 20 proceedings,
or to obtain summary judgment,
was dismissed by the TCC where it
was argued that a limitation clause
in a collateral warranty prevented
the claim for contribution being
made pursuant to the Civil Liability
(Contribution) Act 1978 (CL(C)A
1978). See News Analysis: In brief
—Part 20 claim permitted under
warranty (Bloomberg v Sandberg).
16 October 2015 Definition of 'construction
contract': The TCC refused to
allow recovery of adjudication costs
on the basis that the agreement in
question was not a construction
contract for the purposes of the
application of the HGCRA 1996 or
the Scheme for Construction
Contracts (England and Wales)
Regulations 1998, SI 1998/649
under which the adjudication had
taken place. See News Analysis:
Recoverability of adjudication costs
(Husband and Brown v Mitch
Developments).
Winding-up/interim payments:
The Court of Appeal confirmed that
(i) the JCT provisions comply with s
111(10), (ii) the absence of a pay
less notice does not prevent an
employer from later arguing that
the valuation in an interim
certificate was wrong, and (iii) a
winding-up petition should not be
used to enforce an interim payment
obligation, where the employer
challenges the valuation or has a
genuine cross claim. See News
Analysis: Enforcing interim
payments—winding-up or TCC?
2 October 2015 Contributory negligence: The
TCC considered allegations of

[2015] EWHC 2372 (TCC)
September 2015
Case
Openview Security Solutions v
London Borough of Merton
Council
[2015] EWHC 2694 (TCC)
Wycombe Demolition v Topevent
[2015] EWHC 2692 (TCC)
Purton (t/a Richwood Interiors) v
Kilker Projects
[2015] EWHC 2624 (TCC)
August 2015
Case
Henia Investments v Beck
Interiors
[2015] EWHC 2433 (TCC)
Judgment date
28 September 2015
Hearing 31 July 2015; Judgment
published 28 September
16 September 2015
Judgment date
14 August 2015
Page 10
negligence against a project
monitor, when it was clear that the
bank should never have agreed the
loan in the first place. See News
Analysis: In brief—Negligent
project monitoring (Lloyds Bank v
McBains Cooper).
Key facts
Suspension under Public
Contract Regs: The TCC
considered lifting a suspension to
the contracting process under the
Public Contract Regs, applying the
American Cyanamid principles, and
considered how the public interest
should be taken into account. See
News Analysis: In brief—Lifting a
suspension under the Public
Contract Regulations (Openview v
Merton).
Adjudicator's jurisdiction: The
TCC enforced an adjudicator’s
decision, dismissing arguments
that multiple disputes had been
referred and that there had been a
breach of natural justice. See News
Analysis: Adjudication enforced,
with sympathy for the adjudicator’s
position (Wycombe Demolition v
Topevent).
Contract formation/adjudicator's
jurisdiction: The TCC considered
whether a contract had been
formed and examined whether the
court had to satisfied that the
contract was the same as
contended by the claimant. See
News Analysis: In brief—
adjudicator's jurisdiction and an
uncertain contract (Purton v Kilker
Projects).
Key facts
JCT payment/liquidated
damages: The TCC provided
helpful judicial guidance on the
interpretation of the payment

NH International (Caribbean) v
National Insurance Property
Development Company
[2015] UKPC 37
July 2015
Case
Caterpillar Motoren GmbH & Co
K.G. v Mutual Benefits Assurance
Company
[2015] EWHC 2304 (Comm)
Brit UW v F&B Trenchless
Solutions
[2015] EWHC 2237 (Comm)
Page 11
provisions in the JCT Standard
Building Contract 2011 (SBC), as
well as the operation of liquidated
damages where the contract
administrator is yet to decide on a
claim for an extension of time. See
News Analysis: In brief—payment,
pay less notices and liquidated
damages under JCT contracts
(Henia Investments v Beck
Interiors).
6 August 2015 Arbitration/FIDIC Red Book: The
Privy Council allowed two appeals
from the Trinidad & Tobago Court
of Appeal regarding two interim (or
partial) arbitral awards. The dispute
arose out of an agreement
expressed to be subject to the
FIDIC Red Book for the
construction of a hospital in
Tobago. The Privy Council took a
firm stance on respecting party
autonomy and tribunal findings of
fact and considered the application
of clause 2.5 of the Red Book to
set-off and counterclaims. See
News Analysis: Privy Council—
courts should respect party
autonomy and tribunal findings of
fact (NH International (Caribbean) v
National Insurance Property
Development Company).
Judgment date Key facts
31 July 2015 On-demand bonds: The
Commercial Court held, based on
the language used by the parties
and Paget's presumption, that two
advance payment bonds and two
performance bonds granted for a
project in Liberia were on-demand.
See News Analysis: In brief—
bonds held to be on-demand.
31 July 2015 Insurance: The Commercial Court
held that an insurer had validly
avoided an insurance policy where
a tunnelling sub-contractor failed to
disclose details of settlement of the
ground when settlement caused a
train to derail. See News Analysis:
In brief—failure to disclose facts
allowed insurer to avoid

Cofely Solelec and Others v
Parliament
Case T-419/15 (not available in
English)
Woods Building Services v Milton
Keynes Council
[2015] EWHC 2011 (TCC) and
[2015] EWHC 2172 (TCC)
(Remedies)
SSE Generation v Hochtief
Solutions AG and Hochtief (UK)
Constructions
[2015] CSOH 92
Portsmouth City Council v Ensign 14 July 2015
Highways
[2015] EWHC 1969 (TCC)
Page 12
contractor's liability policy.
28 July 2015 Public
procurement/abandonment: This
case concerned a challenge by a
tenderer against a decision by the
European Parliament to abandon a
public contract award following the
evaluation stage. The applicants
unsuccessfully argued that the
Parliament had failed to state
reasons for its decision, and
committed a manifest error in
arriving at its decision. See News
Analysis: In brief: General Court
reaffirms authorities’ power to
abandon public contract awards
(Cofely Solelec and Others v
Parliament).
14 July 2015 Procurement: Procurement of
framework for asbestos removal.
Claims made regarding unfair
conduct of procurement process.
Judge re-evaluated questions in
quality section of the tender. TCC
held that there were manifest errors
in the tender evaluation process,
and instances the duties of
transparency and equality of
treatment were breached. TCC
refused to order Council to award
the contract to the contractor and
held damages the appropriate
remedy. See News Analyses: In
brief—Manifest errors in
procurement exercise (Woods v
Milton Keynes) and Remedies in
Woods v Milton Keynes.
14 July 2015 Insurance: Scottish case—Outer
House, Court of Session held that
CAR insurance policy did not
displace parties' liability to each
other under NEC contract. SSE
therefore entitled to bring an action
against Hochtief for damage to
tunnel. See News Analysis: CAR
policy does not supplant parties’
liability under NEC contracts.
PFI/Deductions/Good faith:
Declarations sought from the court
regarding performance of certain
obligations under a PFI
contract. TCC considered whether,
in relation to deductions, a
‘Maximum Event Value’ indicated a
range or a fixed figure. The TCC

Amec Foster Wheeler Group v
Morgan Sindall Professional
Services
[2015] EWHC 2012 (TCC)
Obrascon Huarte v AG for
Gibraltar
[2015] EWCA Civ 712
Iliffe & another v Feltham
Construction
[2015] EWCA Civ 715
Hearing 29 June 2015; Judgment
published 14 July 2015
9 July 2015
9 July 2015
Page 13
held that a maximum value
indicated the upper limit of a range
of possible values. Also, the court
found that a duty to act in good
faith set out in a particular clause of
the contract did not apply to the
whole contract. See News Analysis:
In brief—Deductions under a PFI
contract and good faith
(Portsmouth CC v Ensign).
A later hearing was heard on costs:
[2015] EWHC 3320 (TCC).
Production of documents in
arbitration: The TCC held that the
defendants were obliged to deliver
documents to AMEC relating to two
arbitrations, despite any obligation
of confidentiality to the other party
to the arbitrations. See News
Analysis: In brief—TCC orders
production of documents (AMEC v
Morgan Sindall & Others).
Termination/Design: The Court of
Appeal considered Obrascon's
appeal against the TCC's decision
that it could have foreseen the
amount of contamination it
encountered in undertaking tunnel
works at Gibraltar airport and that
the employer’s termination of the
FIDIC contract was lawful. Court of
Appeal upheld the TCC's decision
and dismissed Obrascon's appeal.
See News Analysis: In brief—
Obrascon Huarte v AG of Gibraltar
—Obrascon's appeal dismissed.
Appeal against summary
judgment: The Court of Appeal
allowed the appeal by the main
contractor against summary
judgment granted in favour of the
home owners whose house was
destroyed by fire. Although the
Iliffes had a good chance of
success, a full trial will be held as
to quantum and liability of the other
parties joined in the proceedings. It
was therefore inappropriate to give
summary judgment when similar
issues would be later determined in
full proceedings between the other
parties—this therefore constituted a
'compelling reason' not to enter
summary judgment within the
meaning of CPR 24.2(b). See

Gotch v Enelco
[2015] EWHC 1802 (TCC)
Bunge SA v Nidera BV
[2015] UKSC 43
June 2015
Case
Medicure v The Minister for the
Cabinet Office
[2015] EWHC 1854 (TCC)
Calendonian Modular v Mar City
Developments
[2015] EWHC 1855 (TCC)
Page 14
News Analysis: In brief—Appeal
allowed against summary judgment
(Iliffe v Feltham Construction).
3 July 2015 Adjudication—entitlement to
refer: TCC refused to consider an
application for a declaration relating
to the parties’ entitlement to refer a
dispute to adjudication. As neither
party had any current intention to
refer a dispute to adjudication, the
application served no useful
purpose. See News Analysis:
Adjudication declaration refused it
would serve no useful purpose
(Gotch v Enelco).
1 July 2015 Damages: Measurement of
damages for anticipatory breach
(renunciation). UKSC unanimously
concluded that a default damages
clause, construed on its precise
terms, did not provide a complete
code for assessing damages for
the breach. UKSC confirmed the
compensatory principle identified in
The Golden Victory and that this
'overriding compensatory principle'
was not limited to instalment
contracts as had perhaps
previously been suggested. See
News Analysis: UKSC considers
damages clauses and anticipatory
breach (renunciation) (Bunge SA v
Nidera BV).
Judgment date Key facts
29 June 2015 Procurement: Procurement of
framework for supply of locum
doctors. Tender process was
challenged and claims made
regarding operation of the
framework agreement. TCC held
that both tender process and
framework agreement had been
properly and fairly operated. See
News Analysis: In brief—Medicure
Ltd v The Minister for the Cabinet
Office.
29 June 2015 Enforcement of adjudication
decision/Payment: Judge
considered substantive issue at
enforcement hearing. Question
regarding validity of documents
 Page 15

claimed to be application for interim

payment or valid payee's notice.
TCC held documents were not
valid application for interim
payment/valid payee's notice
therefore no sums due under
adjudicator’s decision. See News
Analysis: Incorrect adjudicator’s
decision not enforced (Caledonian
Modular v Mar City).
Severfield UK Ltd v Duro 25 June 2015 Enforcement of adjudication
Felguara UK Ltd decision/construction
[2015] EWHC 2975 (TCC) operations: The TCC refused to
enforce an adjudicator’s decision,
where the decision arguably
included operations that were not
‘construction operations’ as defined
by the HGCRA 1996. See News
Analysis: No enforcement of
adjudicator’s decision where it
arguably included excluded
operations (Severfield UK Ltd v
Duro Felguara UK Ltd).
Swynson v Lowick Rose 24 June 2015 Damages/Mitigation: Concerned
[2015] EWCA Civ 629 level of damages recoverable by an
innocent party where its loss was
avoided not as a consequence of
its own attempts to mitigate loss,
but due to the intervention of a third
party. Court of Appeal held
intervention of third party did not go
to reduce the damages recoverable
(appeal dismissed). See News
Analysis: Court of Appeal—
substance triumphs over form in
avoided loss appeal (Swynson v
Lowick Rose).
Martifer UK v Lend Lease 19 June 2015 Contract documents/Programme
Construction (EMEA) for works: Was an information
[2015] CSOH 81 release schedule the programme
for the sub-contract in question and
was it a contract document?
Scottish case (Outer House of the
Court of Session). Held that the
IRS was a sub-contract document
but did not impose an obligation on
the parties to complete the works in
accordance with the programme in
it. See News Analysis: In brief—
information release schedule
programme not binding (Martifer v
Lend Lease).

IMI v Delta Limited
[2015] EWHC 1676 (Ch)
Transformers and Rectifiers v
Needs
[2015] EWHC 1687 (TCC)
Page 16
an unfavourable adjudicator's
decision to have the dispute finally
determined and recover money
paid out. Is it the time limit applying
to the original claim, or does a new
period of six years run from the
date of payment? Supreme Court
overturned Court of Appeal
decision. Held that party seeking
repayment of an adjudication
award is entitled to the full limitation
period (from date of payment),
even if a dispute on the underlying
facts would have been time barred.
See News Analysis: Supreme
Court gives one-way decision on
limitation and adjudication (Aspect
Contracts v Higgins).
16 June 2015 Part 20/Civil Liability
(Contribution) Act 1979:
Court's interpretation of the
operation of CL(C)A 1978, s 1(4)
meant that Part 20 defendant was
precluded from asserting that it was
not liable for a contribution on the
basis that the main claim was time-
barred. See News Analysis: Part 20
defendant precluded in contribution
proceedings from relying on
limitation arguments which could
have been raised in main claim (IMI
v Delta).
12 June 2015 Costs: Two costs orders made
against the defendant by Edwards-
Stuart J following defendant's
unsuccessful attempt to adjourn a
preliminary issues trial. Further
costs order against defendant later
made by Coulson J, also in relation
to the adjournment. Issue was
whether Coulson J had jurisdiction
under the CPR to undertake
summary assessment of all three
costs orders or whether
assessment should be undertaken
by same judge that made the costs
orders. TCC held that where a
costs order is made following an
interim application, those costs
may be the subject of summary
assessment at a later date by a
different judge. See News Analysis:
Summary costs assessment—
which judge should undertake the
assessment? (Transformers and
 Page 17

Rectifiers v Needs).