Category: Construction

Hardy, Regina (On the Application of) v Milford Haven Port Authority and Others: CA 30 Nov 2007

Renewed application for permission to appeal against a refusal to give permission for judicial review of the respondent Port Authority’s refusal to disclose documents relevant to the safety of proposals for the construction and operation of two liquefied natural gas terminals at Milford Haven.

Lord Justice Toulson
[2007] EWCA Civ 1403
Bailii
England and Wales

Construction, Litigation Practice

Updated: 30 November 2021; Ref: scu.346262

Walker Construction (UK) Ltd v Quayside Homes Ltd and Another: CA 7 Feb 2014

Laws, McFarlane, Gloster LJJ
[2014] EWCA Civ 93, [2014] 1 CLC 121
Bailii
England and Wales
Cited by:
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .

Lists of cited by and citing cases may be incomplete.

Costs, Construction

Updated: 29 November 2021; Ref: scu.521054

Birse Construction Limited v St David Limited: TCC 12 Feb 1999

There are four approaches to deciding whether an arbitration agreement exists to which section 9 applies:- (1) to determine on the evidence before the court that such an agreement does exist in which case (if the disputes fall within the terms of that agreement) a stay must be granted, in the light of the mandatory ‘shall’ in section 9(4). It is this mandatory provision which is the statutory enactment of the relevant Article of the New York Convention, to which the United Kingdom is a party; (2) to stay the proceedings on the basis that it will be left to the arbitrators to determine their own jurisdiction pursuant to section 30 of the 1996 Act, taking into account the subsequent provisions in the 1996 Act for challenge to any decision eventually made by the arbitrators; (3) not to decide the issue but to make directions pursuant to what is now CPR Part 62.8 for an issue to be tried as to whether an arbitration agreement does indeed exist; (4) to decide that no arbitration agreement exists and to dismiss the application to stay.

HHJ Humphrey Lloyd
[1999] EWHC Technology 253, (1999) BLR 194
Bailii
England and Wales
Cited by:
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Construction, Arbitration

Updated: 27 November 2021; Ref: scu.136058

Macob Civil Engineering Ltd v Morrison Construction Ltd: TCC 12 Feb 1999

Once made, an award by an adjudicator under the Scheme was enforceable immediately and should be enforced by writ and application for summary judgment, provided only that the arbitrator had jurisdiction to make the award. It remained payable immediately despite any intention to challenge. The Act and Regulations were discussed by the Court: ‘The intention of Parliament in enacting the Act was plain. It was to introduce a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement: see section 108(3) of the Act and paragraph 23(2) of Part 1 of the Scheme. The timetable for adjudications is very tight (see section 108 of the Act). Many would say unreasonably tight, and likely to result in injustice. Parliament must be taken to have been aware of this. So far as procedure is concerned, the adjudicator is given a fairly free hand. It is true (but hardly surprising) that he is required to act impartially (s 108(2)(e) of the Act and paragraph 12(a) of Part 1 of the Scheme). He is, however, permitted to take the initiative in ascertaining the facts and the law (s 108(2)(f) of the Act and paragraph 13 of Part 1 of the Scheme). He may, therefore, conduct an entirely inquisitorial process, or he may, as in the present case, invite representations from the parties. It is clear that Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept. But Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.’

Dyson J
Gazette 10-Mar-1999, Times 11-Mar-1999, [1999] EWHC Technology 254, (1999) 64 Con LR 1, [1999] BLR 93
Bailii
Scheme for Construction Contracts (England and Wales) Regulations 1998 (1988 No 649)
England and Wales
Cited by:
Distinguished – Ritchie Brothers (Pwc) Limited v David Philp (Commercials) Limited IHCS 24-Mar-2005
The adjudicator had delivered his decision out of time. The pursuer sought to enforce it. The defender aid that if it was delivered out of time it was void.
Held: The expiry of the time limit deprived the arbitrator of jursidcition to decide . .
Cited – Ritchie Brothers (Pwc) Limited v David Philp (Commercials) Limited IHCS 24-Mar-2005
The adjudicator had delivered his decision out of time. The pursuer sought to enforce it. The defender aid that if it was delivered out of time it was void.
Held: The expiry of the time limit deprived the arbitrator of jursidcition to decide . .
Approved – Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd CA 21-Nov-2003
. .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .

Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 27 November 2021; Ref: scu.136059

Henry Boot Construction Limited v Alstom Combined Cycles Limited (Formerly GEC Alsthom Combined Cycles Limited): TCC 22 Jan 1999

Humphrey Lloyd QC
[1999] EWHC Technology 263
Bailii
England and Wales
Citing:
Cited – Alstom Combined Cycles Ltd v Henry Boot Plc TCC 1-May-2001
. .

Cited by:
See Also – Alstom Combined Cycles Ltd v Henry Boot Plc TCC 1-May-2001
. .

Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 27 November 2021; Ref: scu.136065

Burton v Revenue and Customs: FTTTx 23 Jul 2013

FTTTx VALUE ADDED TAX – DIY builders scheme – conversion of barn adjacent to a dwelling (a listed building) to enlarge the dwelling – whether the works were ‘a residential conversion’ within the meaning of section 35(1A)(c) VATA – whether works consisted in the conversion of a ‘non-residential building’ or a ‘non-residential part of a building’ into a building designed as a dwelling or a number of dwellings – held they were not – the works were therefore not a ‘residential conversion’ within section 35 VATA – whether the Tribunal could consider and give effect to any legitimate expectation of the appellant that he would qualify for a refund under section 35 VATA – held, following HMRC v Abdul Noor [2012] UKUT 071 (TCC), that the Tribunal had no jurisdiction to consider the question of legitimate expectation – appeal dismissed

[2013] UKFTT 401 (TC)
Bailii
England and Wales

VAT, Construction

Updated: 20 November 2021; Ref: scu.515177

DBE Energy Ltd v Biogas Products Ltd: TCC 18 May 2020

Alleged breach of contract and/or negligence of the Defendant in relation to the design, manufacture and supply of components required by the Claimant for incorporation into its newly built anaerobic digestion facility

[2020] EWHC 1232 (TCC)
Bailii
England and Wales
Cited by:
Main judgment – DBE Energy Ltd v Biogas Products Ltd TCC 20-May-2020
Consequential matters relating to interest and costs. . .

Lists of cited by and citing cases may be incomplete.

Construction

Updated: 19 November 2021; Ref: scu.653324

Astral Construction Ltd v Revenue and Customs: FTTTx 2 Jul 2013

FTTTx VAT – zero rating – building work – construction of residential care home integrating existing church – whether taken out of zero rating by being works of enlargement, extension, or conversion – Value Added Tax Act 1994 Schedule 5 Group 8 Item 2 – appeal allowed

[2013] UKFTT 374 (TC)
Bailii
Value Added Tax Act 1994
England and Wales

VAT, Construction

Updated: 17 November 2021; Ref: scu.513507

Base Brickwork (A Firm) v Revenue and Customs: FTTTx 22 Aug 2012

Construction Industry Scheme – cancellation of gross payment registration – breaches of compliance test – whether reasonable excuse under para 8(3) sch 11 FA 2004 – whether forgiveness under reg 32 Income Tax (Construction Industry Scheme) Regulations 2005 (SI 2005/2045) – appeal dismissed

[2012] UKFTT 536 (TC)
Bailii
England and Wales

Income Tax, Construction

Updated: 15 November 2021; Ref: scu.466069

Reed v Revenue and Customs: FTTTx 28 Jan 2011

FTTTx INCOME TAX – schedule D – trade – deduction – expenses – building subcontractor – working at different building sites for successive short periods – cost of travel between home and site – appeal succeeds

Jennifer Trigger (Judge)
[2011] UKFTT 92 (TC)
Bailii
England and Wales

Income Tax, Construction

Updated: 11 November 2021; Ref: scu.442829

Kmiecic v Isaacs: QBD 12 Mar 2010

The claimant sought damages after suffering injury when falling from a ladder working on the uninsured builder’s site. He sued the owners of the property, saying that by refusing to allow or pay for the work to be conducted in safer ways, she had taken control over the works and made herself responsible, pointing to differences in the regulations.
Held: Swift J said: ‘The 2005 Regulations apply, in the case of a non-employer, to ‘work by a person under his control, to the extent of his control’. The 1996 Regulations impose a duty on a non-employer who ‘controls the way in which the construction work is carried out by a person at work’ to comply with the Regulations ‘insofar as they relate to matters which are within his control’ . . the defendant did not assume control over the claimant, in the sense of being able to direct how he carried out his work. She was entitled to – and did – impose limits on (and thereby control) his access to her property, by refusing him entry to the house for the purpose of gaining access to the roof. She did that in her capacity as an occupier, not as a person controlling the way in which he carried out his work.’ The defendant did not owe the duty claimed, his employer did.

Swift J
[2010] EWHC 381 (QB)
Bailii
Work at Height Regulations 2005, Construction (Health, Safety and Welfare) Regulations 1996, Provision and Use of Work Equipment Regulations 1998
England and Wales
Citing:
Cited – Jennings v The Forestry Commission CA 23-May-2008
The claimant was a self employed contractor. He suffered serious injuries when while working for the defendant, his vehicle overturned. The defendant appealed against the finding of liability. The Land Rover went out of control on a steeply sloping . .
Cited – Mccook v Lobo and others CA 19-Nov-2002
The defendant was the occupier of premises. He did not direct how the work should be done and was not present at the time the work was being performed.
Held: He had not been in control of the relevant work. Judge LJ referred to Regulation 4(2) . .

Lists of cited by and citing cases may be incomplete.

Personal Injury, Health and Safety, Construction

Updated: 11 November 2021; Ref: scu.402624

Balfour Beatty Regional Construction Ltd v Grove Developments Ltd: CA 13 Oct 2016

Contractor’s responsibility for stage payments

Appeal by a building contractor against a decision that there is no entitlement to interim payments in the period after the contractual date for practical completion. The principal issues are (i) how some rather unusual amendments to the standard form building contract should be construed and (ii) how section 109 of the 1996 Act applies in the circumstances of this case.

Longmore, Jackson, Vos LJJ
[2016] EWCA Civ 990, [2016] WLR(D) 522
Bailii, WLRD
Housing Grants, Construction and Regeneration Act 1996 109
England and Wales

Construction, Contract

Updated: 11 November 2021; Ref: scu.570174

Principal and Fellows of Newnham College In the University of Cambridge v Revenue and Customs: HL 16 Apr 2008

A new library had been built for the college. A company owned by the college took a lease of it from the college, and reclaimed the input tax paid on construction. The company managed the library.
Held: The Revenue’s appeal failed. The question was whether the college was in occupation of the library, either alone or together with the company. The Act could not be read as desired by the Revenue to include in the idea of occupation, any occupation of whatever nature.

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Mance and Lord Neuberger of Abbotsbury
[2008] 2 All ER 863, [2008] 16 EG 152, [2008] BTC 5330, [2008] STC 1225, [2008] STI 1231, [2008] BVC 452, [2008] NPC 45, [2008] 1 WLR 888, [2008] UKHL 23, Times 17-Apr-2008
Bailii, HL
Value Added Tax Act 1994, Finance Act 1997 37
England and Wales
Citing:
Appeal from – Newnham College Cambridge v Revenue and Customs CA 24-Mar-2006
The College had decided to demolish and rebuild its library. It elected to waive exemption to VAT so as to recover the VAT on its rebuilding costs. It had set up and funded an independent company to carry out the works, granting it a lease of the . .

Cited by:
Cited – Waterside Escapes Ltd v Revenue and Customs FTTTx 13-Oct-2020
Qualifying Property Rental – Stamp Duty Relief
SDLT – higher threshold interest 15% rate – relief for a qualifying property rental business – intention that a non-qualifying individual be permitted to occupy a dwelling on the land (paragraph 5(2), Schedule 4A, FA 2003) – whether a non-qualifying . .

Lists of cited by and citing cases may be incomplete.

VAT, Construction

Updated: 11 November 2021; Ref: scu.266935

The New Deer Community Association v Revenue and Customs: FTTTx 11 Nov 2014

FTTTx ZERO RATING – Construction – Construction of a building intended for use for a relevant charitable purpose – building described as a new pavilion – whether use as a village hall or similarly in providing social or recreational facilities for a local community – In Part – whether available to the whole community to an extent of non sporting, social or recreational use – Yes – whether limited to members of the community who participate in sport and therefore constitute a special interest group – No – Schedule 8, Group 5, Notes (2), (6) and (10), VATA 1994. Appeal allowed in part.

[2014] UKFTT 1028 (TC)
Bailii
England and Wales

Construction, Charity, VAT

Updated: 11 November 2021; Ref: scu.539023

Radford v De Froberville: 2 Jan 1977

A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a certain specification on the plot so as to separate it from the plaintiff’s land. The plaintiff obtained judgment against the defendant for damages for breach of contract by reason of her failure to erect the dividing wall, but an issue arose as to the measure of the damages. The defendant having failed to build the dividing wall on the land purchased from the plaintiff, the plaintiff proposed to build a dividing wall on his own land, and claimed the cost of doing so from the defendant; whereas the defendant maintained that the appropriate measure of damages was the consequent diminution in the value of the plaintiff’s property, which was nil.
Held: The court described the distinction made in the Liesbosch between a plaintiff’s capacity to mitigate his loss and his duty to do so: ‘No doubt the measure of damages and the plaintiff’s duty and ability to mitigate are logically distinct concepts (see for instance, the speech of Lord Wright in Liesbosch (Dredger) v SS Edison (Owners) [1933] AC 449, 456-469). But to some extent, at least, they are mirror images . .’
A contracting party should not use the remedy of damages to recover ‘an uncovenanted profit.’ However: ‘If [the plaintiff] contracts for the supply of that which he thinks serves his interests – be they commercial, aesthetic or merely eccentric – then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, of course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit.’ It was for the plaintiff to judge what performance he required in exchange for the price. The court should honour that choice.
Oliver J said: ‘In the instant case, the plaintiff says in evidence that he wishes to carry out the work on his own land and there are, as it seems to me, three questions that I have to answer. First, am I satisfied on the evidence that the plaintiff has a genuine and serious intention of doing the work? Secondly, is the carrying out of the work on his own land a reasonable thing for the plaintiff to do? Thirdly, does it make any difference that the plaintiff is not personally in occupation of the land but desires to do the work for the benefit of his tenants?’
and: ‘Once proceedings have been commenced and are defended, I do not think that the defendant can complain that it is unreasonable for the plaintiff to delay carrying out the work for himself before the damages have been assessed, more particularly where his right to any damages at all is being contested, for he may never recoup the cost. If, therefore, the proceedings are conducted with due expedition, there seems to me to be no injustice if, by reason of the time that it takes for them to come to trial, the result of inflation is to increase the pecuniary amount of the defendant’s ultimate liability …’

Oliver J
[1977] 1 WLR 1262, [1978] 1 All ER 33
England and Wales
Citing:
Cited – Liesbosch Dredger (Owners of) v Owners of SS Edison, The Liesbosch HL 28-Feb-1933
The ship Edison fouled the moorings of the Liesbosch resulting in the total loss of the dredger when it sank. It had been engaged on work in the harbour under contract with the harbour board. All the owners’ liquid resources were engaged in the . .
Cited – Jackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .

Cited by:
Cited – Lagden v O’Connor HL 4-Dec-2003
The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
Approved – Dodd Properties (Kent) Ltd v Canterbury City Council CA 21-Dec-1979
The defendants had, in the course of building operations, caused nuisance and damage to the plaintiff’s building. The dispute was very lengthy, the costs of repair increased accordingly, and the parties now disputed the date at which damages fell to . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .

Lists of cited by and citing cases may be incomplete.

Damages, Construction

Leading Case

Updated: 10 November 2021; Ref: scu.188657

Puffer v Unabhangiger Finanzsenat Aussenstelle Linz (Approximation Of Laws): ECJ 11 Dec 2008

Mixed Use – VAT on construction Costs

Europa VAT – Building used partly for private purposes and partly for taxable business purposes – Right to deduct input tax on construction costs – Allocation to business use with immediate deduction of all input tax and private use subject to output tax, or pro rata deduction of input tax according to proportions of business and private use – Equal treatment – Validity of national exclusion from right to deduct.

C-460/07, [2008] EUECJ C-460/07, [2009] EUECJ C-460/07
Bailii, Bailii
European

VAT, Construction

Updated: 10 November 2021; Ref: scu.278692

Ruxley Electronics and Construction Ltd v Forsyth: HL 29 Jun 1995

Damages on Construction not as Agreed

The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner against a builder at the cost of recreating a swimming pool which would fit the initial description.
Held: The appeal succeeded. The damages award was disproportionate, and should have been limited to the loss of amenity only. The cost of reinstatement or reconstruction may be an inappropriate standard if it was disproportionate to the loss. ‘There are not two alternative measures of damages, as opposite poles, but only one; namely, the loss truly suffered by the promisee.’ Where the defect is minor it may be appropriate for an award for disappointed expectation rather than any difference in value. The fact that such damages could not be calculated mathematically did not mean they could not be calculated.
HL Lord Jauncey of Tullichettle said: ‘Damages are designed to compensate for an established loss and not provide a gratuitous benefit for an aggrieved party from which it follows that the reasonableness of an award of damages is to be linked directly to the loss sustained does not extend to the need to reinstate.’ and
‘What constitutes the aggrieved party’s loss is in every case a question of fact and degree. Where the contract breaker has entirely failed to achieve the contractual objective it may not be difficult to conclude that the loss is the necessary cost of achieving that objective. Thus if a building is constructed so defectively that it is of no use for its designed purpose the owner may have little difficulty in establishing that his loss is the necessary cost of reconstructing. Furthermore in taking reasonableness into account in determining the extent of loss it is reasonableness in relation to the particular contract and not at large.’
Lord Mustill stated: ‘the law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure. This excess . . is usually incapable of precise valuation in terms of money, exactly because it represents a personal, subjective and non-monetary gain. Nevertheless where it exists the law should recognise it and compensate the promisee if the misperformance takes it away . . [I]n several fields the judges are well accustomed to putting figures to intangibles, and I see no reason why the imprecision of the exercise should be a barrier, if that is what fairness demands.’

Lord Mustill, Lord Lloyd of Berwick, Lord Jauncey of Tullichettle
Independent 12-Jul-1995, Gazette 06-Sep-1995, Times 03-Jul-1995, [1996] 1 AC 344, [1995] 3 WLR 118, [1995] UKHL 8, [1995] CLC 905, [1995] 3 All ER 268
Bailii
England and Wales
Citing:
Appeal from – Ruxley Electronics and Construction Ltd v Forsyth CA 7-Jan-1994
In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep . .
Considered – Addis v Gramophone Company Limited HL 26-Jul-1909
Mr Addis was wrongfully and contumeliously dismissed from his post as the defendant’s manager in Calcutta. He sought additional damages for the manner of his dismissal.
Held: It did not matter whether the claim was under wrongful dismissal. . .
Considered – Jacob and Youngs v Kent 1921
. .
Considered – East Ham Corporation v Bernard Sunley and Sons Ltd HL 1965
In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Robinson v Harman 18-Jan-1848
Damages for breach of contract should compensate the victim of the breach for the loss of his contractual bargain. Baron Parke said: ‘The next question is: What damages is the plaintiff entitled to recover? The rule of the common law is, that where . .
Cited – British Westinghouse Electric and Manufacturing Co v Underground Electric Railways Co (London) Limited HL 1912
The plaintiffs purchased eight steam turbines from the defendants. They later proved defective, and the plaintiffs sought damages. In the meantime they purchased replacements, more effective than the original specifications. In the result the . .
Cited – Jacob and Youngs Inc v Kent 1921
Court of Appeals of New York. A building contract specified that the plumbing should use a particular type of piping. In fact the builder used a different type of piping. Cardozo J. stated: ‘In the circumstances of this case, we think the measure of . .
Cited – Bellgrove v Eldridge 1954
High Court of Australia. The builder built a house with defective foundations, as a result of which the house was unstable. The building owner brought an action against the builder claiming the cost of reinstatement.
Held: His claim succeeded . .
Cited – Tito v Waddell (No 2); Tito v Attorney General ChD 1977
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees ‘But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a . .
Cited – Radford v De Froberville 2-Jan-1977
A contract was made for the sale of a plot of land adjoining a house belonging to the plaintiff (the vendor) but occupied by his tenants, under which the defendant (the purchaser) undertook to build a house on the plot and also to erect a wall to a . .
Cited – Minscombe Properties Ltd v Sir Alfred McAlpine and Sons Ltd CA 1986
O’Connor LJ applied the test of reasonableness in determining whether the cost of reinstatement of land to its contracted for condition should be recoverable as damages. . .
Cited – Imodco Ltd v Wimpey Major Projects Ltd CA 1987
Glidewell LJ stated that the cost of work to put pipes in the position contracted for would be recoverable if there was an intention to carry out the work and if it was reasonable so to do. . .
Cited – Mottram Consultants Ltd v Bernard Sunley and Sons Ltd HL 1975
Stone panels which had been fixed to the external walls of a school fell off, owing to defective fixing by the contractor.
Held: The contractor was liable for the cost of reinstating the stone panels, calculated at the date when the defect was . .
Cited – G W Atkins Ltd v Scott CA 1980
A building owner complained of defective tiling installed by the appellant. He claimed the cost of retiling the whole roof. The county court judge found that the tiling was defective, but that the defects were mostly cosmetic and of a minor . .
Cited – C R Taylor (Wholesale) Ltd v Hepworths Ltd 1977
May J referred with approval to a statement in McGregor On Damages (13th edn, 1972) paras 1059-1061 that in deciding between diminution in value and cost of reinstatement the appropriate test was the reasonableness of the plaintiffs desire to . .
Cited – Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel) QBD 5-Apr-1994
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .
Cited – Jarvis v Swans Tours Ltd CA 16-Oct-1972
The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .
Cited – Jackson v Horizon Holidays Ltd CA 5-Feb-1974
A family claimed damages for a disappointing holiday. The generous measure of damages given to the father was that the father was being fully compensated for his own mental distress, but the rule of privity of contract operated to bar the claim for . .
Cited – Sealace Shipping Co Ltd v Oceanvoice Ltd, The Alecos M CA 1991
The parties contracted for the sale of a ship, including a spare propeller. When the ship was delivered there was no spare propeller. It was common ground that there was no market for secondhand propellers. So the only way of providing a spare . .

Cited by:
Cited – Farley v Skinner HL 11-Oct-2001
The claimant sought damages from the defendant surveyor. He had asked the defendant whether the house he was to buy was subject to aircraft noise. After re-assurance, he bought the house. The surveyor was wrong and negligent. A survey would not . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Catlin Estates Ltd and Another v Carter Jonas (A Firm) TCC 31-Oct-2005
The defendants had been employed to manage a building project which it was said went wrong. The court had to consider several different factual claims. . .
Cited – Latimer and Another v Carney and others CA 27-Oct-2006
The landlords appealed disissal of their request for relief against their tenants for non-repair of the premises. The judge had held that the landlord had not provided appropriate evidence of the damage and costs of repair which it claimed.
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Regus (Uk) Ltd v Epcot Solutions Ltd ComC 4-May-2007
Claim for unpaid fees for the use of serviced office accommodation and a very large counter-claim for mis-representation and breach of contract over allegedly defective air conditioning. . .
Cited – Dobson and others v Thames Water Utilities Ltd and Another CA 29-Jan-2009
The claimants complained of odours and mosquitoes affecting their properties from the activities of the defendants in the conduct of their adjoining Sewage Treatment plant. The issue was as to the rights of non title holders to damages in nuisance . .
Cited – Morris-Garner and Another v One Step (Support) Ltd SC 18-Apr-2018
The Court was asked in what circumstances can damages for breach of contract be assessed by reference to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to . .

Lists of cited by and citing cases may be incomplete.

Construction, Damages, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.88938

J and M Interiors (Scotland) Ltd v Revenue and Customs: FTTTx 13 Feb 2014

FTTTx CONSTRUCTION INDUSTRY SCHEME – failure to deduct tax from payments made to sub-contractors – whether contractor took reasonable care – yes – whether error made in good faith – yes – appeal allowed – Regulation 9 Income Tax (Construction Industry Scheme) Regulations 2005

[2014] UKFTT 183 (TC)
Bailii
England and Wales

Income Tax, Construction

Updated: 09 November 2021; Ref: scu.521790

Direktor Na Direktsia v Orfey Balgaria Eood: ECJ 19 Dec 2012

dndirektsia_obeECJ2012

ECJ VAT – Directive 2006/112/EC – Articles 63, 65, 73 and 80 – Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons – Barter contract – VAT on construction services – Chargeable event – When chargeable – Payment on account of the entire consideration – Payment on account – Basis of assessment for a transaction in the event of consideration in the form of goods or services – Direct effect

C Toader, acting P
C-549/11, [2012] EUECJ C-549/11
Bailii
Directive 2006/112/EC

European, VAT, Construction

Leading Case

Updated: 02 November 2021; Ref: scu.468764

Mitsui Construction Co Ltd v Attorney General of Hong Kong: PC 1986

Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made. But the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contracted for on a sensible and businesslike basis.’

Lord Bridge of Harwich
(1986) 33 BLR 14
England and Wales
Cited by:
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Sinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corporaton and Another CA 17-Feb-2000
. .
Cited – Oxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
Cited – Multi-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
Cited – Rainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
Cited – MT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .

Lists of cited by and citing cases may be incomplete.

Construction, Commonwealth, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.273182

Aldi Stores Ltd v WSP Group Plc and others: CA 28 Nov 2007

Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. In reaching the decision, the court had taken into account matters which were irrelevant. The fact that a claim might have been raised in earlier proceedings was not conclusive to establish abuse of process. Whether a second claim is abusive calls for an exercise of judgment. It is not an exercise of discretion. Rather, it is a question to which, ultimately, there is only a correct answer. The court must look at all the circumstances. Nor was the fact that a decision made by a party in complex proceedings which might result in the use of greater judicial time necessarily an abuse. It was for the state to provide the necessary resources and there are other constraints on parties who might proceed in this way and which were short of denying them justice. If was for the defendant to prove the claim to be an abuse, and it had not discharged that burden. The issue of abuse engages both the public interest, which is concerned with the finality of litigation and the efficient management of litigation, and the private interest of the claimant seeking access to the court.
Thomas LJ said: ‘I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring an action in a different way) can make the action impermissible. If an action can be properly brought, it is the duty of the state to provide the necessary resources; the litigant cannot be denied the right to bring a claim (for which he in any event pays under the system which operates in England and Wales) on the basis that he could have acted differently and so made more efficient use of the court’s resources. . The problems which have arisen in this case should have been dealt with through case management.’

Longmore LJ, Thomas LJ, Wall LJ
[2007] EWCA Civ 1260, Times 04-Dec-2007, [2008] BLR 1, [2008] CILL 2549, [2008] 115 Con LR 49, [2008] CP Rep 10, [2008] PNLR 14, [2008] 1 WLR 748, (2008) 24 Const LJ 334
Bailii
England and Wales
Citing:
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Appeal from – Aldi Stores Ltd v WSP Group Plc and others TCC 15-Jan-2007
. .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited by:
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . .
Cited – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
Cited – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .

Lists of cited by and citing cases may be incomplete.

Construction, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.261596

Brickfield Properties Ltd v Newton: CA 1971

Court’s Investigation of Construction Claims

The court heard an application to amend pleadings to add a claim about negligent supervision of a construction. Sachs LJ said: ‘Where there are found in completed buildings serious defects of the type here under review the facts relating to design, execution and superintendence are inextricably entangled until such time as the court succeeds in elucidating the position through evidence. The design has inevitably to be closely examined even if the only claim relates to superintendence, and all the more so if the designs are, as is further alleged here, experimental or such as need amplification in the construction progresses. The architect is under a continuing duty to check that his design will work in practice and to correct any errors as they emerge. It savours of the ridiculous for the architect to be able to say, as it was here suggested to him that he could say: ‘true, my design was faulty, but, of course, I saw to it that the contractors followed it faithfully’ and be enabled on that ground to succeed in the action.
The same, or substantially the same set of facts, falls to be investigated in relation to the design claim and the superintendence claim. The plans and specifications and ancillary documents are relevant to the superintendence claim as well as to the designer claim: hence the inability of the defendant to allege prejudice with regard to the preparation of his defence if this appeal is allowed. Accordingly, the ‘new cause of action’ falls within the ambit of RSC Ord. 20 r. 5(5), and it is one which the court has jurisdiction to permit to be pursued’.

Sachs LJ, Edmund Davies LJ
[1971] 1 WLR 862, [1971] 3 All ER 328
England and Wales
Cited by:
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .

Lists of cited by and citing cases may be incomplete.

Limitation, Construction

Leading Case

Updated: 01 November 2021; Ref: scu.415957

Allen Wilson Joinery Ltd v Privetgrange Construction Ltd: TCC 17 Nov 2008

The claimant sought summary judgment to enforce an arbitration award in a construction dispute. The defendants argued that the contract was not sufficiently evidenced in writing to accord with the 1996 Act. The claimants replied that any oral variations were trivial.
Held: Akenhead J set out the requirements for writing as follows: ‘(a) For there to be a construction contract in writing for the purposes of Section 107 and Part II of the HGCRA, all the terms of the contract must be in writing and recorded in one of the ways set out in Section 107.
(b) Whilst adjudicators (and indeed judges) should be robust in determining whether trivial matters said to have been agreed only orally between the parties can prevent what would otherwise be a written contract for the purpose of Section 107 being a written contract, the exercise of determining what is trivial must be an objective one in relation to the particular contract and parties concerned. What may be ‘trivial’ in one contract may not be in another. Thus, for example, an oral agreement on a million pound project as to which of two mildly differing shades of light blue paint might be used may be trivial on one development but not on another.
(c) It is always necessary to determine whether a so-called agreement made orally was in reality expected or intended to be binding as between the parties. Thus, the parties having discussed and agreed something orally might later have reduced their agreement into writing in such a way as to supersede the earlier oral agreement. A later oral agreement may not be binding; for instance, it may lack consideration or otherwise may not be intended to be binding.’
Implied terms are placed in a contract by operation of law, and do not make the contract as whole not in writing. However in this case there was a triable issue as to whether some terms were sufficiently serious to mean that the contract was not in writing as required.

Akenhead J
[2008] EWHC 2802 (TCC), [2009] TCLR 1, 123 Con LR 1
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Citing:
Cited – RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd CA 8-Mar-2002
The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: ‘Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed . .
Cited – Trustees of the Stratfield SAYE Estate v AHL Construction Limited TCC 6-Dec-2004
The court was asked what was meant by a contract in writing under section 10. Jackson J applied RJT saying: ‘The principle of law which I derive from the majority judgments in RJT is this: an agreement is only evidenced in writing for the purposes . .
Cited – Connex South Eastern Ltd v MJ Building Services Group Plc TCC 25-Jun-2004
The court was asked whether the existence of implied terms converts an otherwise written construction contract into one that is no longer a written contract for the purposes of Section 107. Richard Havery QC J said: ‘The first question I must . .
Cited – Galliford Try Infrastructure Ltd and Another v Mott Macdonald Ltd TCC 17-Jul-2008
The court was asked whether the implication of terms into a written contract implied that it was not a contract in writing under ection 107. HHJ Seymour QC said: ‘it may be necessary to consider carefully the effect of s. 107 of the 1996 Act as . .

Lists of cited by and citing cases may be incomplete.

Construction, Contract

Updated: 01 November 2021; Ref: scu.277879

Steel v Young: SCS 11 Jan 1907

‘The main question to be disposed of under this appeal is that which is raised by the fact that the pursuer in building the walls of the house used milled lime instead of cement mortar as required by the specification.
In making that departure from the specification the pursuer was acting in accordance with the orders of the architect, but I am of opinion that nevertheless he must be regarded as being in breach of his contract in a question with the defender if the architect was not authorised by the latter to substitute the one material for the other.’

Lord Low
[1907] ScotCS CSIH – 4, 1907 SC 360, [1907] SLR 44 – 291
Bailii, Bailii
Scotland

Construction, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.279272

East Ham Corporation v Bernard Sunley and Sons Ltd: HL 1965

In cases in which the plaintiff is seeking damages for the defective performance of a building contract, which is a contract for labour and materials, the normal measure of his damages is the cost of carrying out remedial work, or re-instatement. Reasonableness is a part of the primary assessment of damages as well as of mitigation of damage.
Lord Cohen said: ‘the learned editors of Hudson’s Building and Engineering Contracts, 8th ed. (1959) say at p.319 that there are in fact three possible bases of assessing damages, namely, (a) the cost of reinstatement; (b) the difference in cost to the builder of the actual work done and work specified; or (c) the diminution in value of the work due to the breach of contract. They go on: ‘There is no doubt that wherever it is reasonable for the employer to insist upon reinstatement the courts will treat the cost of reinstatement as the measure of damage.’ In the present case it could not be disputed that it was reasonable for the appellants to insist upon reinstatement and in these circumstances it necessarily follows that on the question of damage the trial judge arrived at the right conclusion.’
Lord Upjohn stated that in a case of defective building work reinstatement was the normal measure of damages.

Lord Upjohn, Lord Guest, Lord Cohen and Lord Pearson
[1966] 1 AC 406, [1965] 3 All ER 619
England and Wales
Cited by:
Considered – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Cited – Alfred Mcalpine Construction Limited v Panatown Limited HL 17-Feb-2000
A main contractor who was building not on his own land, would only be free to claim damages from a sub-contractor for defects in the building where the actual owner of the land would not also have had a remedy. Here, the land owner was able to sue . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd and Others CA 29-Jun-1994
The council owned land on which it wanted to build a recreational centre. Construction contracts were entered into not by the council but by a finance company, the building contractors being the respondents Wiltshier Northern Ltd. The finance . .
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .
Cited – Darlington Borough Council v Wiltshier Northern Ltd CA 28-Jun-1994
The plaintiff council complained of the work done for it by the defendant builder.
Held: Steyn LJ said: ‘in the case of a building contract, the prima facie rule is cost of cure, i.e., the cost of remedying the defect: East Ham Corporation v. . .

Lists of cited by and citing cases may be incomplete.

Damages, Construction

Leading Case

Updated: 01 November 2021; Ref: scu.192627

RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd: CA 8 Mar 2002

The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: ‘Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed by the parties, is made in writing. That must mean where the agreement is contained in a written document which stands as a record of the agreement and all that was contained in the agreement. The second category, an exchange of communications in writing, likewise is capable of containing all that needs to be known about the agreement. One is therefore led to believe by what used to be known as the eiusdem generis rule that the third category will be to the same effect namely that the evidence in writing is evidence of the whole agreement.
Sub-section (3) is consistent with that view. Where the parties agree by reference to terms which are in writing, the legislature is envisaging that all of the material terms are in writing and that the oral agreement refers to that written record.
Sub-section (4) allows an agreement to be evidenced in writing if it (the agreement) is recorded by one of the parties or by a third party with the authority of the parties to the agreement. What is there contemplated is, thus, a record (which by sub-section (6) can be in writing or a record by any means) of everything which has been said. Again it is a record of the whole agreement.’ and ‘On the point of construction of section 107, what has to be evidenced in writing is, literally, the agreement, which means all of it, not part of it. A record of the agreement also suggests a complete agreement, not a partial one. . . It must be remembered that by virtue of section 107(1) the need for an agreement in writing is the precondition for the application of the other provisions of Part II of the Act, not just the jurisdictional threshold for a reference to adjudication. I say ‘unfortunately’ because, like Auld L.J. whose judgment I have now read in draft, I would regard it as a pity if too much ‘jurisdictional wrangling’ were to limit the opportunities for expeditious adjudication having an interim effect only. No doubt adjudicators will be robust in excluding the trivial from the ambit of the agreement and the matter must be entrusted to their common sense. ‘

Lords Justice Auld, Ward and Robert Walker
Gazette 11-Apr-2002, [2002] CILL 1841, (2002) 18 Const LJ 425, [2002] TCLR 21, 83 Con LR 99, [2002] EWCA Civ 270, [2002] CLC 905, [2002] 1 WLR 2344, [2002] BLR 217
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Cited by:
Followed – Trustees of the Stratfield SAYE Estate v AHL Construction Limited TCC 6-Dec-2004
The court was asked what was meant by a contract in writing under section 10. Jackson J applied RJT saying: ‘The principle of law which I derive from the majority judgments in RJT is this: an agreement is only evidenced in writing for the purposes . .
Cited – Allen Wilson Joinery Ltd v Privetgrange Construction Ltd TCC 17-Nov-2008
The claimant sought summary judgment to enforce an arbitration award in a construction dispute. The defendants argued that the contract was not sufficiently evidenced in writing to accord with the 1996 Act. The claimants replied that any oral . .

Lists of cited by and citing cases may be incomplete.

Construction, Contract, Arbitration

Leading Case

Updated: 01 November 2021; Ref: scu.170039

Swain v Revenue and Customs: FTTTx 20 May 2013

FTTTx VAT – DIY residential conversion – conversion of barn to house – planning permission limiting occupation of property to manager or proprietor of holiday accommodation business to be operated from adjacent barns (for which planning permission also obtained) – whether conversion work was carried out in course or furtherance of a business – no – whether the separate use, or disposal of the property was prohibited by the planning permission for the purposes of Note (2)(c) to Group 5, Schedule 8 VAT Act 1994 – yes – appeal dismissed

[2013] UKFTT 316 (TC)
Bailii
England and Wales

VAT, Construction

Leading Case

Updated: 31 October 2021; Ref: scu.513464

EL Flood and Sons Partnership v Revenue and Customs: FTTTx 21 Feb 2012

FTTTx Value Added Tax – whether work in replacing a damaged plasterboard ceiling with a lath and plaster ceiling in a Grade II listed building, the change of fabric resulting from insistence by the planning authority, qualified as an alteration to the fabric of a listed building, and thus to be zero-rated – Appeal allowed

Nowlan TJ
[2012] UKFTT 147 (TC)
Bailii
England and Wales

VAT, Construction

Updated: 31 October 2021; Ref: scu.451959

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc: TCC 23 May 2013

The claimants had been engaged to provide an asbestos survey. An arbitration claim had gone against them and they appealed.

Akenhead J
[2013] EWHC 1322 (TCC), [2013] WLR(D) 211
Bailii, WLRD
Housing Grants, Construction and Regeneration Act 1996 108(5), Scheme for Construction Contracts (England and Wales) Regulations 1998
Cited by:
Appeal from – Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc CA 29-Nov-2013
The appeal succeeded. The Scheme implied that any overpayment could be recovered. . .
At First Instance – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 31 October 2021; Ref: scu.510042

Hoskins v Revenue and Customs: FTTTx 20 Apr 2012

Construction Industry Scheme – Appellant paid sub-contractor gross -appellant liable for amount that ought to have been deducted – appeal against HMRC’s refusal to make direction relieving appellant under Regulation 9 of the Income Tax (Construction Industry Scheme) Regulations 2005 (‘CIS Regulations’) because HMRC not satisfied sub-contractor had paid tax – whether Tribunal had jurisdiction on this point – no – whether HMRC wrong to refuse relief under Regulation 9(3) of CIS Regulations (reasonable care to comply, error made in good faith, genuine belief deduction obligation did not apply) – no – appeal dismissed

[2012] UKFTT 284 (TC)
Bailii
England and Wales

Updated: 31 October 2021; Ref: scu.462684

Tets Haskovo v Direktor Na Direktsia: ECJ 18 Oct 2012

ECJ Taxation – VAT – Right of deduction – Contribution in kind – Destruction of property – New buildings – Adjustment
R. Silva de Lapuerta
C-234/11, [2012] EUECJ C-234/11
Bailii
European
Citing:
Opinion – Tets Haskovo v Direktor Na Direktsia ECJ 14-Jun-2012
ECJ (Opinion) Tax legislation – Value added tax – Articles 185 and 187 of Directive 2006/112/EC – Adjustment of deductions in connection with the demolition of buildings . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.503553

Naylor and Others v Roamquest Ltd and Another: TCC 10 Mar 2021

application by the Defendants to strike out parts of the claim, and/or for summary judgment in respect of those parts, on the basis that the Statement of Case discloses no reasonable grounds for bringing those claims, they have no real prospect of success and there is no other compelling reason for a trial.
Mrs Justice O’Farrell DBE
[2021] EWHC 567 (TCC)
Bailii
England and Wales

Updated: 27 October 2021; Ref: scu.663148

John Doyle Construction Limited v Laing Management (Scotland) Limited: SCS 18 Apr 2002

The pursuer made a loss and expense claim in global form in a construction dispute. He was unable to prove that all of his losses stemmed from the default.
Held: A global claim requires proof that each and every element of the loss claimed followed from the breach. Proof that any event not part of the fault caused any part of the loss would defeat the entire claim. However some common sense should be applied, and where individual losses demonstrably flowed from individual acts of default, a rational apportionment might still be possible.
Lord MacFadyen
Times 10-Jul-2002
Scotland
Citing:
Cited – John Holland Construction and Engineering Pty Ltd v Kvaerner R J Brown Pty Ltd 1996
(Supreme Court of Victoria) The defendant applied to strike out substantial parts of a statement of claim on grounds including that the defendant faced allegations that by reason of breaches of contract the plaintiff had suffered loss of damage, . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.170357

Dart Major Works Ltd v Customs and Excise: VDT 1 Oct 2004

Value added tax – exempt supplies – buildings – whether an emergency demolition of a protected building can be an ‘approved alteration’ within Schedule 8, Group 6, item 2 of the Value Added Tax Act 1994 – whether the demolition can be a ‘supply in the course of construction’ of the replacement to the building within Schedule 8, Group 5, item 2.
[2004] UKVAT V18781
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.216482

On Line Design and Engineering Ltd v Engineering Construction Industry Training Board: Admn 21 Feb 2013

The appeal is about the industrial training levy charged by the Board, and specifically whether that levy should be charged to the appellant at 1.5% of the emoluments of its employees or the lower rate of 0.18%.
Mr Justice Edwards-Stuart
[2013] EWHC 287 (Admin), [2013] ICR D19
Bailii
England and Wales

Updated: 10 October 2021; Ref: scu.471161