Cases by Area of Law


Dawnus Construction Holdings Ltd v Amey LG Ltd

Barrister: Andrew Kearney
Area of Law: Construction
Summary: Andrew Kearney appeared in the TCC for Amey in a case in which two construction adjudication decisions were found to have become finally binding due to failure to give a notice of dissatisfaction.

Read a summary and the full case published on BAILII: http://www.bailii.org/ew/cases/EWHC/TCC/2017/B13.html

Ecovision Systems Ltd v Vinci Construction UK Ltd

[2015] EWHC 587 (TCC)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary: This case was heard in the Technology and Construction Court, and is one of the few cases in which enforcement of an adjudicator’s decision was refused.  Andrew acted for the successful party, Ecovision, both advising it in the adjudication (to the point where it withdrew and refused to take no further part) and in the Part 8 proceedings which followed.  The Adjudicator was appointed by the RICS.  Andrew successfully argued that properly construed the contract incorporated the TeCSA rules and required that the Adjudicator be appointed by the Chair of TeCSA.  In this case it was important to identify the correct procedure to be followed, since there were material differences between the three possible procedures – NEC3 clause W2 (as amended), the Scheme and the TeCSA rules.  The case is highly unusual in that it is uncommon for a responding party in adjudication to go beyond simply reserving its position on jurisdiction and instead to refuse to participate (and then itself commence proceedings for a declaration that the decision was a nullity). 

View judgment: Ecovision Systems Ltd v Vinci Construction UK Ltd

 

Cometson v Merthyr Tydfil County Borough Council and R&M Williams Limited

[2014] EWHC 419 (Ch) (21 February 2014)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary: This case was heard in the Chancery Division in Cardiff. It was the first of a number of potential cases concerning ‘Envelope Schemes’ in South Wales. Andrew Kearney acted for the contractor, R&M Williams Limited. The property owner initially claimed direct against the contractor, but the contractor obtained summary judgment on that claim. The owner maintained a claim against the Council which had arranged the Envelope Scheme. The Council claimed against the contractor. This is thought to be the only reported authority on the nature and scope of the legal obligations which arise out of these schemes. There have been many hundreds of properties renovated under such schemes. Aside from the importance of the legal issues, an unusual feature of the case was that the Judge (Mr Justice Morgan) decided to hear expert evidence concurrently (so called ‘hot tubbing’), and included within the hot tub the expert witnesses for owner and Council and a witness of fact from the contractor. The process worked well , but the trial of liability only still took 8 days. The contractor succeeded on all issues other than some minor snagging, which it would have carried out if permitted.

Freshwater v Dŵr Cymru Cyf (Welsh Water)

Barrister:  Andrew Kearney
Area of Law: Construction and Engineering / Property Insurance Litigation
Summary:  Andrew defended Welsh Water in a dispute in the Cardiff TCC concerning alleged escapes of water from a main.  The claim was brought under s209 Water Industry Act 1991.  The Claimants alleged that escapes of water had washed away the fines from the subsoil beneath their property, causing it to subside and requiring very extensive piling and remedial works.  The case involved consideration of historical flow data, evidence of prior repairs and of highway drainage schemes and local groundwater and surface water run off, water testing and analysis, expert evidence from civil engineers, structural engineering and quantity surveying evidence and consideration of the extent of piling and remedial schemes. 

Stopjoin Projects Limited v Balfour Beatty Engineering Services (HY) Limited

[2014] EWHC 589 (TCC)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary: This was a TCC case concerning the consequences of an attempted assignment of the benefit of a building contract, where there was an effective anti assignment clause.  Andrew represented the Claimant (Stopjoin, the would be assignee).  It was common ground that where there was an effective anti assignment clause in the building contract  the House of Lords authority in Linden Gardens v Lenesta Sludge prevented a would be assignee from bringing a claim as assignor.  The Defendant attempted to strike out the claim, or obtain summary Judgment.  The Claimant argued that it was nonetheless entitled to bring the claim in its own name as beneficiary of an implied trust.  Since the original contracting party (the assignor, now in liquidation) was unwilling to bring proceedings, Stopjoin claimed that it was entitled to do so itself using the ‘Vandepitte procedure’.  Balfour Beatty argued that there was no real prospect of Stopjoin succeeding on this argument at trial, that no trust could arise without an intention to create a trust and that the Vandepitte procedure was not applicable in commercial cases.  The Judge, His Honour Judge Havelock-Allan QC found for the Claimant.

Lidl UK GmbH v R G Carter Colchester Ltd

 [2012] EWHC 3138 (TCC)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary:
Andrew successfully represented Lidl in the recovery in the London TCC of c £350K of liquidated damages arising from an Adjudicator’s decision, notwithstanding that the Adjudicator had exceeded his jurisdiction and was alleged to have breached the rules of natural justice.  RG Carter’s attempted pre-emptive strike under Part 8 of the CPR was unsuccessful.  RG Carter were represented by Leading Counsel.
Download judgment: Lidl UK GmbH v R G Carter Colchester Ltd

Melhuish & Saunders Ltd v Hurden & Anor

[2012] EWHC 3119 (TCC) (19 October 2012)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary:
A TCC case which considered amongst other things the contractor’s duty to obtain Building Regulation certification from an approved inspector, the interface between a defects claim and NHBC cover, and the award of damages for distress and inconvenience.
Download judgment: Melhuish & Saunders Ltd v Hurden & Anor

J B Leadbitter & Co Ltd v Hygrove Holdings Ltd

[2012] EWHC 1941 (TCC)

Barrister: Andrew Kearney
Area of Law: Construction and Engineering
Summary:
The TCC granted summary judgment in respect of sums due under a building contract – a supplemental escrow account agreement entered into was ineffective as a ‘pay when paid’ agreement under s113(1) HGCR Act 1996.
Download judgment: J B Leadbitter & Co Ltd v Hygrove Holdings Ltd

Cain Electrical Ltd v Cox t/a Pennine Control Systems

[2011] EWHC 2681 (TCC) 2011 EWCA Civ 1466

Barrister: Andrew Kearney
Area of Law: Construction & Engineering

Summary: Enforcement of an Adjudicator’s decision, notwithstanding the party enforcing having relied on oral terms. The Court of Appeal refused permission to appeal.

Rok Building Ltd v Bestwood Carpentry Ltd

[2010] EWHC 1409 (TCC)

Barrister: Andrew Kearney
Area of Law: Construction & Engineering

Summary: Unusually, adjudication enforcement by a Part 7 trial with cross-examination of witnesses, which showed that not all of the terms agreed had been recorded in writing (s107 HGCRA 1996).