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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:
December 2015
Case Judgment date Key facts
Fulton Shipping Inc of Panama v 21 December 2015 Repudiation/damages: The Court
Globalia Business Travel SAU of Appeal, allowed an appeal
(formerly Travelplan SAU) of regarding the measure of damages
Spain to be assessed following the ship
[2015] EWCA Civ 1299 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).
C&S Associates UK Ltd v 21 December 2015 Repudiation: The Commercial
Enterprise Insurance Company Court gave judgment on seven
plc preliminary issues concerning the
[2015] EWHC 3757 (Comm) 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
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November 2015
Case Judgment date Key facts
Severfield (UK) Ltd v Duro 24 November 2015 Application of
Felguera UK Ltd HGCRA 1996/Construction
[2015] EWHC 3352 (TCC) 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).
Mi-Space (UK) Ltd v Bridgwater 20 November 2015 Adjudication enforcement: The
Civil Engineering Ltd TCC refused to enforce an
[2015] EWHC 3360 (TCC) adjudicator’s decision, holding that
an agreement reached by email,
Page 6
October 2015
Case Judgment date Key facts
Harlequin Property (SVG) Ltd and 29 October 2015 ATE Insurance: The TCC
another v Wilkins Kennedy (a dismissed an application by the
Firm) claimants to vary an order for
[2015] EWHC 3050 (TCC) 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).
GBM Minerals Engineering v GB 28 October 2015 Costs/Amendment to pleadings:
Minerals Holdings (No. 2) The TCC held that each party
[2015] EWHC 3091 (TCC) 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).
Page 8
September 2015
Case Judgment date Key facts
Openview Security Solutions v 28 September 2015 Suspension under Public
London Borough of Merton Contract Regs: The TCC
Council considered lifting a suspension to
[2015] EWHC 2694 (TCC) 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).
Wycombe Demolition v Topevent Hearing 31 July 2015; Judgment Adjudicator's jurisdiction: The
[2015] EWHC 2692 (TCC) published 28 September 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).
Purton (t/a Richwood Interiors) v 16 September 2015 Contract formation/adjudicator's
Kilker Projects jurisdiction: The TCC considered
[2015] EWHC 2624 (TCC) 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).
August 2015
Case Judgment date Key facts
Henia Investments v Beck 14 August 2015 JCT payment/liquidated
Interiors damages: The TCC provided
[2015] EWHC 2433 (TCC) helpful judicial guidance on the
interpretation of the payment
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July 2015
Case Judgment date Key facts
Caterpillar Motoren GmbH & Co 31 July 2015 On-demand bonds: The
K.G. v Mutual Benefits Assurance Commercial Court held, based on
Company the language used by the parties
[2015] EWHC 2304 (Comm) 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.
Brit UW v F&B Trenchless 31 July 2015 Insurance: The Commercial Court
Solutions held that an insurer had validly
[2015] EWHC 2237 (Comm) 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
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June 2015
Case Judgment date Key facts
Medicure v The Minister for the 29 June 2015 Procurement: Procurement of
Cabinet Office framework for supply of locum
[2015] EWHC 1854 (TCC) 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.
Calendonian Modular v Mar City 29 June 2015 Enforcement of adjudication
Developments decision/Payment: Judge
[2015] EWHC 1855 (TCC) considered substantive issue at
enforcement hearing. Question
regarding validity of documents
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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).
IMI v Delta Limited 16 June 2015 Part 20/Civil Liability
[2015] EWHC 1676 (Ch) (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).
Transformers and Rectifiers v 12 June 2015 Costs: Two costs orders made
Needs against the defendant by Edwards-
[2015] EWHC 1687 (TCC) 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
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Rectifiers v Needs).