Cases Flashcards
Twintec Ltd v Volkerfitzpatrick Ltd 2014
Adjudication
Injunction granted to a SC to restrain the contractor from pursuing a reference to adjudication after the appointment of an adjudicator
In the absence of agreement by the parties as to the appointment, any decision made by the adjudicator would be a nullity
Wates Construction Ltd v Franthom Properties Ltd 1991
Retention in separate bank account
F engaged W to construct hotel
W requested F place retention monies in a separate and identifiable account, to which they refused
Judge found for W, stating F had a duty to protect the fund in the interest of the beneficiaries
Immediate obligation to set aside the fund in a separate account
Rayack Construction v Lampeter Meat Co Ltd 1979
Retention in separate bank account
Retention to be held at 50% for 5 years
R requested L set aside the retention monies in a separate bank account (citing clause 34(4)), seeking this through injunction when ignored
Judge found for R - purpose of the provision is to protect both parties from insolvency
Hadley v Baxendale 1854
Unliquidated damages
Hadley was denied recovery of lost profit for late delivery of a crankshaft
Baxendale could only be held liable for losses that were reasonably foreseeable, of which lost profit in this case was not
Gave rise to the two limbs:
Arising naturally
Such as may have been in reasonable contemplation of the parties at the time the contract was made
Trentham (G Percy) Ltd v Archital Luxfer Ltd 1993
Is a contract in place
No written contract in place, but there were oral and written exchanges and transactions were fully executed
Judge found for T, stating there was evidence to justify the finding that there were contracts concluded partly by conduct, which were capable of coming into existence after part of the work had been carried out
Blyth & Blyth Ltd v Carillion Construction Ltd 2001
Novation of design liability
Novation produces a tripartite relationship between the parties
A party cannot claim against a party they only have a novated relationship with for something prior to the date of the novation agreement’s execution
Lindenberg v Canning and Others 1992
Duty to warn & contributory negligence
A demolition of walls in a project was incorrectly completed
C was in breach of contract because they ought to have raised doubts over the unclear drawing, thus not having exercised the required skill and care
L was owed no duty of care from C in negligence
L had been contributorily negligent by its agent (the designer) wrongly showing the walls as non-load bearing so we’re apportioned 25% of the liability
Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners 1975
Duty level dependent on circumstances
Floor not fit for purpose due to methodology and insufficiently strong design
B owed a higher duty of care by virtue of the special circumstances
MT Højgaard A/S v E On Climate and Renewables UK Robin Rigg East Ltd 2017
Fitness for purpose
Contract stipulated 20 year life span of foundations of which the product did not meet
Contract provisions should almost always be given their natural meaning
John Mowlem & Co v British Insulated Callenders Pension Trusts Ltd and ors 1977
Limits on Contractor’s liability for design of others
B engaged J to build a warehouse and J engaged XP for structural engineering services
XP had failed to exercise sufficient skill and care in their design so were negligent
The bills did not impose a design obligation on J so they were not liable for XP’s design
Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd 1999
Ownership of programme float
Established that a contractor cannot claim against subcontractors where they have claimed benefit of the float from the Employer as if the float did not exist
Robinson v Harman 1848
Damages must place the injured party in the same position had the other party performed
Established the objective of common contract law being to put the parties in the same position as if the contract had been performed (restitution)
Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd 1915
Should damages be punitive
Damages must be a genuine pre-estimate of the loss incurred - anything else is punitive
Balfour Beatty Construction (Scotland) Ltd v Scottish Power Plc 1994
Applicability of remoteness test to construction confirmed
Power went off during concrete pour
£10,000-£15,000 awarded in damages but major demolition damages not awarded as it would be unreasonable to expect Scottish Power to understand the technical construction operations’ implications of power dropping
Blue Circle Industries Plc v Holland Dredging Company (UK) Ltd 1987
Scope & validity of variations
If works are wholly outside the scope of the original contract, they cannot be ordered as a variation and must be a separate contract
Henry Boot Construction Ltd v Alston Combined Cycles 2000
Using tender rates to price variations
The basis for valuation as using tender rates and prices cannot be displaced on the grounds the rates were mistakenly inserted
If variation works are significantly different to the works in the BOQ, the engineer could carry out a valuation of their own
Costain Ltd v Bechtel Ltd 2005
Whose interests should the PM act in
Confirmed PM should act impartially between contractor and employer
MacJordan Construction v Brookmount Erostin Ltd 1991
Retention and order of precedence in insolvency
Bank floating charges take precedence over unsecured claims (in this case retention) in the case of insolvency of employer
Emphasises the importance of setting aside the retention fund
RGB Plastering Limited v Tawe Drylining and Plastering Limited 2020
Obligation to issue in compliance with contract processes
An application for payment was submitted late and not to the email address stipulated in the contract
Application held to be invalid
Panamena Europea Navigacion v Leyland 1947
Obligation to issue in compliance with contract processes
A surveyor thought his function of certification included the manner in which works were carried out and declined to deal with an issue until information he requested was provided
This information request was based on his erroneous view of the contract, meaning he was insisting on an illegitimate condition precedent to carrying out his certification duty
Respondents thus could recover the amount claimed in action
Galliford Try Building Ltd v Estura Ltd 2015
Final account vs final valuation
GT attempted to get their final application (higher than Estura’s valuation) approved as the final account
This manoeuvring combined with Estura’s lack of money was considered a manifest injustice and stayed with Estura’s own lower valuation
Westminster CC v Jarvis & Sons Ltd 1969
Completion validity
There is no delay if the party achieves such apparent completion that the contractor is able to take over, notwithstanding that the work apparently completed may be defective
Mersey Steel & Iron Co v Naylor Benzon & Co 1884
Defines repudiation
A steel seller assumed non-payment on part-delivery as a breach
This was not the case as the whole service had not been carrying out and there was no provision for payment for part-delivery
Repudiation is in essence one party saying you fulfil your obligations and the other party saying/heavily implying I will not fulfil mine, which is of course not the case here
Architectural Installation Services v James v James Gibbons Windows 1989
Notices of termination must relate to each other in time and content
A notice must have a sensible connection with those prior
If there is no sensible connection and there is a two-notice process to the termination procedure, the second notice will be invalid
Notices must follow the process and notices must be sensibly connected to whatever their consequences are
Tate & Lyle Food Distribution Co Ltd v GLC 1981
Purpose of interest when applied to damages due
Interest should reflect the cost to the plaintiff of having the sums owed to them not paid
Correct rate to charge should be ascertained by taking the rate at which the plaintiffs could borrow money in general
199 Knightsbridge Development Ltd v WSP UK Ltd 2014
State of the art defence can be used but not necessarily successfully
Opposing party must prove the other foresaw the problem and designed accordingly still resulting in failure
