This document is the spring 2016 issue of the newsletter for the Technology and Construction Bar Association (TECBAR). It contains three articles summarizing recent cases relevant to TECBAR members. The first article analyzes the recent case of Burgess v Lejonvarn and discusses the boundary between contractual and tortious duties. The second article comments on the case of Grove Developments Limited v Balfour Beatty Regional Construction Limited and its clarification of when the Construction Contracts scheme may be implied. The third article provides a case note on the Supreme Court's decision in Cavendish Square Holding BV v Talal El Makdessi, which reassessed the limits of penalties in contracts. The issue also announces that the
1) A subcontractor was unpaid for road patching work it performed for Con Edison under a contract. It filed liens and sued Con Edison along with other parties.
2) The case involves complex issues around public improvement liens under New York's Lien Law, including questions around whether the work constituted a public or private improvement and whether valid liens were filed.
3) While the liens themselves may not be valid, the plaintiffs can still potentially recover against Con Edison through trust fund provisions of the Lien Law since Con Edison received project funds and commenced an interpleader proceeding.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_9_contract_law_enforce...throwaw4y
This document provides learning objectives and summaries for a chapter about enforcing contracts. It discusses:
1) Who can enforce a contract, such as the parties to the contract or third party beneficiaries. Only parties to the contract generally have enforcement rights.
2) Defenses to enforcement if a party did not validly consent, such as if they made a mistake, were pressured or manipulated.
3) Remedies for breach of contract, including damages, contract termination, and other options.
4) How contracts can be terminated by agreement or frustrated. Time limits for taking legal action are also outlined.
The chapter will consider if Johnny can enforce Maria's promise in their business partnership agreement based on these
This document provides a historical overview and analysis of the development and demise of the doctrine of fundamental breach of contract in New Zealand law. It discusses how the doctrine emerged in response to perceived injustices in standard form contracts containing wide exclusion clauses between commercial parties and consumers. While the doctrine served to overcome the rigidity of exclusion clauses, it was ambiguous and lacked clear authority. The document traces the introduction of the doctrine, its growth and acceptance, and subsequent fall from use. It examines changing jurisprudence around discharge for breach of contract and concludes that fundamental breach can no longer be successfully argued in New Zealand courts given legislative reforms and its redundancy in light of modern contract law principles.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_8_contract_law_terms_o...throwaw4y
This document provides learning objectives and content about contract terms. It discusses the difference between express terms that are explicitly agreed to by parties, and implied terms from courts or statutes. Express terms in a written and signed contract are generally binding even if a party did not read the contract. However, a contract could be void under the doctrine of non est factum if a party was mistaken about the fundamental nature of a document they signed due to factors like illiteracy or misleading representations. The chapter also examines a scenario between Johnny and Maria regarding the sale of half a restaurant business and whether any terms were breached.
This document discusses the responsibilities of a debtor's counsel throughout a Chapter 13 bankruptcy case. It begins by providing a hypothetical scenario where a debtor is 49 months into a 60 month repayment plan when the counsel receives a motion for relief from stay and a motion to dismiss for unpaid plan payments. The document analyzes what the counsel's responsibilities are in this situation based on case law and local rules. It emphasizes that the counsel is obligated to represent the debtor on important motions like these and cannot demand more money or refuse to appear in court. The best practices for counsel include clearly establishing communication expectations, documenting them, and acting in accordance with professional responsibilities throughout the case.
Dixie Holdings filed a derivative lawsuit on behalf of Red Dice Holdings against Medical Marijuana, Inc. claiming breach of the Red Dice Operating Agreement. MJNA filed a petition to compel arbitration based on an arbitration clause in the Operating Agreement. Dixie opposed the petition, arguing the clause did not apply because the suit was derivative. MJNA replied that the suit was essentially between the two members and subject to arbitration under the terms of the agreement. MJNA also provided context regarding the business disputes between the parties preceding the litigation.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_10_contract_law_workin...throwaw4y
The document discusses the principal-agent relationship and the legal responsibilities that arise. It defines a principal as the person who authorizes an agent to act on their behalf, defining the agent as the person acting for the principal, and a third party as the person with whom the agent interacts. The principal will be legally bound by the agent's authorized actions but not unauthorized actions. It explores the types of agents, including universal, general, and special agents. It also discusses whether Cathy, as Johnny's agent, had the authority to hire a new waiter and if so, whether that created a legally binding contract between Johnny and the waiter.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_7_contract_law_formati...throwaw4y
This document provides an overview of contract law and the formation of contracts. It discusses the key elements required for a valid contract, including an agreement between parties where one party makes an offer that the other accepts. It also discusses when an agreement is formed through offer and acceptance. Specifically, it examines what constitutes a valid offer versus a non-binding invitation to treat. The chapter problem asks whether Johnny and Maria formed a legally binding agreement when Maria accepted Johnny's offer via text message while he was intoxicated.
1) A subcontractor was unpaid for road patching work it performed for Con Edison under a contract. It filed liens and sued Con Edison along with other parties.
2) The case involves complex issues around public improvement liens under New York's Lien Law, including questions around whether the work constituted a public or private improvement and whether valid liens were filed.
3) While the liens themselves may not be valid, the plaintiffs can still potentially recover against Con Edison through trust fund provisions of the Lien Law since Con Edison received project funds and commenced an interpleader proceeding.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_9_contract_law_enforce...throwaw4y
This document provides learning objectives and summaries for a chapter about enforcing contracts. It discusses:
1) Who can enforce a contract, such as the parties to the contract or third party beneficiaries. Only parties to the contract generally have enforcement rights.
2) Defenses to enforcement if a party did not validly consent, such as if they made a mistake, were pressured or manipulated.
3) Remedies for breach of contract, including damages, contract termination, and other options.
4) How contracts can be terminated by agreement or frustrated. Time limits for taking legal action are also outlined.
The chapter will consider if Johnny can enforce Maria's promise in their business partnership agreement based on these
This document provides a historical overview and analysis of the development and demise of the doctrine of fundamental breach of contract in New Zealand law. It discusses how the doctrine emerged in response to perceived injustices in standard form contracts containing wide exclusion clauses between commercial parties and consumers. While the doctrine served to overcome the rigidity of exclusion clauses, it was ambiguous and lacked clear authority. The document traces the introduction of the doctrine, its growth and acceptance, and subsequent fall from use. It examines changing jurisprudence around discharge for breach of contract and concludes that fundamental breach can no longer be successfully argued in New Zealand courts given legislative reforms and its redundancy in light of modern contract law principles.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_8_contract_law_terms_o...throwaw4y
This document provides learning objectives and content about contract terms. It discusses the difference between express terms that are explicitly agreed to by parties, and implied terms from courts or statutes. Express terms in a written and signed contract are generally binding even if a party did not read the contract. However, a contract could be void under the doctrine of non est factum if a party was mistaken about the fundamental nature of a document they signed due to factors like illiteracy or misleading representations. The chapter also examines a scenario between Johnny and Maria regarding the sale of half a restaurant business and whether any terms were breached.
This document discusses the responsibilities of a debtor's counsel throughout a Chapter 13 bankruptcy case. It begins by providing a hypothetical scenario where a debtor is 49 months into a 60 month repayment plan when the counsel receives a motion for relief from stay and a motion to dismiss for unpaid plan payments. The document analyzes what the counsel's responsibilities are in this situation based on case law and local rules. It emphasizes that the counsel is obligated to represent the debtor on important motions like these and cannot demand more money or refuse to appear in court. The best practices for counsel include clearly establishing communication expectations, documenting them, and acting in accordance with professional responsibilities throughout the case.
Dixie Holdings filed a derivative lawsuit on behalf of Red Dice Holdings against Medical Marijuana, Inc. claiming breach of the Red Dice Operating Agreement. MJNA filed a petition to compel arbitration based on an arbitration clause in the Operating Agreement. Dixie opposed the petition, arguing the clause did not apply because the suit was derivative. MJNA replied that the suit was essentially between the two members and subject to arbitration under the terms of the agreement. MJNA also provided context regarding the business disputes between the parties preceding the litigation.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_10_contract_law_workin...throwaw4y
The document discusses the principal-agent relationship and the legal responsibilities that arise. It defines a principal as the person who authorizes an agent to act on their behalf, defining the agent as the person acting for the principal, and a third party as the person with whom the agent interacts. The principal will be legally bound by the agent's authorized actions but not unauthorized actions. It explores the types of agents, including universal, general, and special agents. It also discusses whether Cathy, as Johnny's agent, had the authority to hire a new waiter and if so, whether that created a legally binding contract between Johnny and the waiter.
LAWS1100 Nickolas James Business law 4_e_----_(chapter_7_contract_law_formati...throwaw4y
This document provides an overview of contract law and the formation of contracts. It discusses the key elements required for a valid contract, including an agreement between parties where one party makes an offer that the other accepts. It also discusses when an agreement is formed through offer and acceptance. Specifically, it examines what constitutes a valid offer versus a non-binding invitation to treat. The chapter problem asks whether Johnny and Maria formed a legally binding agreement when Maria accepted Johnny's offer via text message while he was intoxicated.
The memorandum discusses the principle of quantum meruit as it applies to an attorney's right to compensation after being discharged from a case. McDonald and Fontana represented Ida Ipana in a personal injury suit against Shipley Supermarket but were subsequently discharged. Quantum meruit allows an attorney to recover the reasonable value of services rendered to prevent unjust enrichment. Relevant Illinois statutes and case law establish that McDonald and Fontana would likely be entitled to a percentage of any recovery or could place a lien on the case until their fees are resolved.
The document discusses the legal principle of premise liability as it relates to a case involving a woman, Mrs. Ipana, who slipped and fell at a supermarket, Shigley's. It summarizes the facts of the case, including that Mrs. Ipana fell in Aisle 3 due to an uncleaned spill and was seriously injured. It analyzes relevant rules on premise liability, including that businesses must warn of hazards they should expect customers to encounter while distracted. The memorandum concludes that whether Shigley's is liable depends on if they should have foreseen customers approaching the spill while distracted, and recommends accepting the case against Shigley's, finding them liable for Mrs. Ipana's injuries.
Contract Law for Paralegals 2nd Edition Reed Solutions ManualMccormickPaula
This case raises ethical issues regarding conflicts of interest and confidentiality. As the attorney for both parties in this transaction, Mr. Smith has a conflict of interest that prevents him from adequately representing the interests of both clients. By representing both the buyer and seller, Mr. Smith cannot give each party independent legal advice or advocate solely for their interests, which is required to competently represent a client. Additionally, any confidential information learned from one client cannot be disclosed to the other without consent.
Given the conflict, Mr. Smith should not represent both parties to the transaction. One option would be to withdraw from representing both and allow each to obtain independent counsel. Another is to get fully informed consent from both clients after advising them of the conflict and risks
This document summarizes the 2013 Supreme Court of Canada decision in Cinar Corporation v. Robinson, a copyright infringement case. The Court found that the defendant Cinar Corporation had copied substantial parts of the plaintiff Claude Robinson's television series "Robinson Curiosité" in creating its series "Robinson Sucroë". The Court affirmed the trial judge's findings of substantial copying of characters, character traits, and aspects of the graphic appearance and personalities. The Court also upheld awards of damages and disgorgement of profits to the plaintiff.
This document discusses the debate around whether judges make law or merely declare existing law. [1] It outlines the traditional declaratory theory view that judges only discover and apply the law. [2] However, modern views recognize that judges necessarily make new law in cases where no rules exist or when interpreting statutes. [3] Judges exercise creativity through distinguishing precedents, setting original precedents, and interpreting statutes purposively rather than literally.
This document discusses aspects of contracts and negligence for business. It analyzes the essential elements of a valid contract, different types of contracts and their impacts, and terms included in contracts. It then applies these contract principles to the scenario of TAM's College contracting with NAMS marketing firm. It also contrasts liability in tort versus contract, discusses the nature of liability in negligence and vicarious liability in business. Finally, it applies the principles of negligence tort, defenses against negligence, and vicarious liability to the scenario of a non-teaching staff member of TAM's College getting injured.
The article discusses the enforceability of interim binding Dispute Adjudication Board (DAB) decisions under the 1999 FIDIC Red Book standard construction contract. It notes that while DAB decisions alone are generally not directly enforceable in court, there is growing acceptance that they can be enforced through interim awards in arbitration proceedings. The article analyzes key cases on this issue, particularly the Persero cases from Singapore, and argues that DAB decisions remain binding on parties regardless of whether a notice of dissatisfaction is filed. It also examines debates around interpreting clauses 20.6 and 20.7 of the Red Book in relation to enforcing binding but not final DAB decisions through arbitration prior to a final determination of the underlying disputes.
Mandatory Arbitration Searching for FairnessWendi Lazar
Mandatory arbitration in employment contracts is unfairly skewed against employees. While arbitration can be preferable for resolving certain disputes, forcing employees to arbitrate discrimination claims undermines their civil rights. In New York, courts apply a stringent test to find arbitration clauses unconscionable, requiring proof of both procedural and substantive unconscionability. Recent cases suggest courts may be less willing to enforce overly broad contractual terms that disadvantage employees. Ultimately, legislative change may be needed to address mandatory arbitration's inequities.
This document summarizes the law around divided or joint infringement after key Supreme Court cases. It discusses that for direct infringement, one entity must perform all steps of a method claim or direct/control the performance of each step. For induced infringement, the inducer must intend to cause infringement but need not directly perform each step. There is no liability if no single party performs all steps but the inducer does not intend to cause joint infringement. Obtaining an opinion of counsel can be used to show lack of intent for induced infringement.
The document discusses ways that arbitrators can save time and costs in commercial arbitration proceedings. It identifies five key methods: 1) using pre-hearing meetings to simplify issues and reach settlements; 2) employing a Scott Schedule to compartmentalize complex disputes; 3) exchanging written proofs in advance to allow scrutiny of documents; 4) admitting written statements instead of oral openings and closings; and 5) choosing hearing locations for convenience. The document argues these techniques can streamline proceedings and focus on material issues to reduce associated costs and delays of arbitration.
Exemption clauses and discharge (allow, release) of contract by DATIUS DIDACEMzumbe University
This is the term of a contract which inserted in the contract by one of the parties (usually the stronger one) which intends to limit or extinguish liabilities in case of breach of the contract.
The Principle of Cost Follows the event in Commercial ArbitrationOluwaseyi Bamigboye
The general principle and practice of ‘cost follows the event’ in arbitration is that the unsuccessful party in an arbitral proceedings shall pay all or substantial part of the arbitration and legal cost to the successful party as calculated by the arbitrator. This publication attempts a review of this principle and concludes with an outline of situations when cost will not necessarily follow the event.
The document provides an overview of contract law concepts including formation, performance, discharge and remedies. It discusses key elements of a valid contract such as offer, acceptance, consideration and capacity. It also covers types of contracts, special contracts, and discharge of contracts through performance, breach or other means. Remedies for breach including rescission and specific performance are also mentioned.
The document discusses various legal ethics scenarios that can arise when a lawyer represents both debtors and creditors. It addresses issues like conflicts of interest, formation of the attorney-client relationship, and handling client funds properly in a client trust account. For example, one scenario discusses whether a law firm would have a conflict of interest if it represented two separate creditors trying to collect debts from the same debtor. The document provides analysis of these scenarios based on legal ethics rules. The goal is to help lawyers navigate the complex issues that can arise when representing both sides in debtor-creditor relationships.
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
TAM's college is trying to become one of the best educational institutes in the UK. They have hired marketing firms and legal advisors to help achieve this. One marketing firm, NAMS, failed to provide the promised month of promotion, breaching their contract. Additionally, a staff member at TAM's college was injured on duty without proper uniform, and the family sued. TAM's college denied responsibility but may be liable under vicarious liability doctrine. The document discusses contract and tort law relating to these scenarios, including elements of a valid contract, types of contracts, negligence liability, and defenses against negligence claims.
Liquidated Damages post Cavendish v MakdessiAdam Ramlugon
The document discusses a recent UK Supreme Court case that clarified the law around liquidated damages clauses and when they constitute unenforceable penalties. It provides an overview of key points for the superyacht industry based on the court's findings. Specifically, 1) the case did not reinvent prior tests but added other considerations, 2) the pre-estimate of loss test remains important but is part of a wider analysis, and 3) context and proportionality are crucial factors, especially for unique vessels like superyachts. However, large liquidated damages for charter cancellations may still be unenforceable penalties.
When Do Liquidated Damages Become an Irrecoverable Penalty?Sarah Fox
The document summarizes guidelines from the case Makdessi v Cavendish for determining whether a contractual sum is an unenforceable penalty or a valid liquidated damages clause. It outlines seven guidelines from the case, including that a sum is more likely to be considered a penalty if it is extravagant compared to possible losses or applies to breaches of different types. It also notes that the guidelines have limitations and contracting parties have freedom to agree terms, making penalties difficult for courts to invalidate.
This document describes the development of a numerical tool to simulate mixing in a multi-mode ejector-augmented pulsed detonation rocket engine. The tool uses OPENFOAM to solve the Favre-averaged Navier-Stokes equations with detailed hydrogen-air chemistry and the k-ω-SST turbulence model. It aims to understand mixing between primary and secondary flows during mode one operation, when pulsed detonations augment thrust at low speeds. Future work may include integrating the tool with NPSS and adding a nozzle to study effects on thrust and efficiency.
The memorandum discusses the principle of quantum meruit as it applies to an attorney's right to compensation after being discharged from a case. McDonald and Fontana represented Ida Ipana in a personal injury suit against Shipley Supermarket but were subsequently discharged. Quantum meruit allows an attorney to recover the reasonable value of services rendered to prevent unjust enrichment. Relevant Illinois statutes and case law establish that McDonald and Fontana would likely be entitled to a percentage of any recovery or could place a lien on the case until their fees are resolved.
The document discusses the legal principle of premise liability as it relates to a case involving a woman, Mrs. Ipana, who slipped and fell at a supermarket, Shigley's. It summarizes the facts of the case, including that Mrs. Ipana fell in Aisle 3 due to an uncleaned spill and was seriously injured. It analyzes relevant rules on premise liability, including that businesses must warn of hazards they should expect customers to encounter while distracted. The memorandum concludes that whether Shigley's is liable depends on if they should have foreseen customers approaching the spill while distracted, and recommends accepting the case against Shigley's, finding them liable for Mrs. Ipana's injuries.
Contract Law for Paralegals 2nd Edition Reed Solutions ManualMccormickPaula
This case raises ethical issues regarding conflicts of interest and confidentiality. As the attorney for both parties in this transaction, Mr. Smith has a conflict of interest that prevents him from adequately representing the interests of both clients. By representing both the buyer and seller, Mr. Smith cannot give each party independent legal advice or advocate solely for their interests, which is required to competently represent a client. Additionally, any confidential information learned from one client cannot be disclosed to the other without consent.
Given the conflict, Mr. Smith should not represent both parties to the transaction. One option would be to withdraw from representing both and allow each to obtain independent counsel. Another is to get fully informed consent from both clients after advising them of the conflict and risks
This document summarizes the 2013 Supreme Court of Canada decision in Cinar Corporation v. Robinson, a copyright infringement case. The Court found that the defendant Cinar Corporation had copied substantial parts of the plaintiff Claude Robinson's television series "Robinson Curiosité" in creating its series "Robinson Sucroë". The Court affirmed the trial judge's findings of substantial copying of characters, character traits, and aspects of the graphic appearance and personalities. The Court also upheld awards of damages and disgorgement of profits to the plaintiff.
This document discusses the debate around whether judges make law or merely declare existing law. [1] It outlines the traditional declaratory theory view that judges only discover and apply the law. [2] However, modern views recognize that judges necessarily make new law in cases where no rules exist or when interpreting statutes. [3] Judges exercise creativity through distinguishing precedents, setting original precedents, and interpreting statutes purposively rather than literally.
This document discusses aspects of contracts and negligence for business. It analyzes the essential elements of a valid contract, different types of contracts and their impacts, and terms included in contracts. It then applies these contract principles to the scenario of TAM's College contracting with NAMS marketing firm. It also contrasts liability in tort versus contract, discusses the nature of liability in negligence and vicarious liability in business. Finally, it applies the principles of negligence tort, defenses against negligence, and vicarious liability to the scenario of a non-teaching staff member of TAM's College getting injured.
The article discusses the enforceability of interim binding Dispute Adjudication Board (DAB) decisions under the 1999 FIDIC Red Book standard construction contract. It notes that while DAB decisions alone are generally not directly enforceable in court, there is growing acceptance that they can be enforced through interim awards in arbitration proceedings. The article analyzes key cases on this issue, particularly the Persero cases from Singapore, and argues that DAB decisions remain binding on parties regardless of whether a notice of dissatisfaction is filed. It also examines debates around interpreting clauses 20.6 and 20.7 of the Red Book in relation to enforcing binding but not final DAB decisions through arbitration prior to a final determination of the underlying disputes.
Mandatory Arbitration Searching for FairnessWendi Lazar
Mandatory arbitration in employment contracts is unfairly skewed against employees. While arbitration can be preferable for resolving certain disputes, forcing employees to arbitrate discrimination claims undermines their civil rights. In New York, courts apply a stringent test to find arbitration clauses unconscionable, requiring proof of both procedural and substantive unconscionability. Recent cases suggest courts may be less willing to enforce overly broad contractual terms that disadvantage employees. Ultimately, legislative change may be needed to address mandatory arbitration's inequities.
This document summarizes the law around divided or joint infringement after key Supreme Court cases. It discusses that for direct infringement, one entity must perform all steps of a method claim or direct/control the performance of each step. For induced infringement, the inducer must intend to cause infringement but need not directly perform each step. There is no liability if no single party performs all steps but the inducer does not intend to cause joint infringement. Obtaining an opinion of counsel can be used to show lack of intent for induced infringement.
The document discusses ways that arbitrators can save time and costs in commercial arbitration proceedings. It identifies five key methods: 1) using pre-hearing meetings to simplify issues and reach settlements; 2) employing a Scott Schedule to compartmentalize complex disputes; 3) exchanging written proofs in advance to allow scrutiny of documents; 4) admitting written statements instead of oral openings and closings; and 5) choosing hearing locations for convenience. The document argues these techniques can streamline proceedings and focus on material issues to reduce associated costs and delays of arbitration.
Exemption clauses and discharge (allow, release) of contract by DATIUS DIDACEMzumbe University
This is the term of a contract which inserted in the contract by one of the parties (usually the stronger one) which intends to limit or extinguish liabilities in case of breach of the contract.
The Principle of Cost Follows the event in Commercial ArbitrationOluwaseyi Bamigboye
The general principle and practice of ‘cost follows the event’ in arbitration is that the unsuccessful party in an arbitral proceedings shall pay all or substantial part of the arbitration and legal cost to the successful party as calculated by the arbitrator. This publication attempts a review of this principle and concludes with an outline of situations when cost will not necessarily follow the event.
The document provides an overview of contract law concepts including formation, performance, discharge and remedies. It discusses key elements of a valid contract such as offer, acceptance, consideration and capacity. It also covers types of contracts, special contracts, and discharge of contracts through performance, breach or other means. Remedies for breach including rescission and specific performance are also mentioned.
The document discusses various legal ethics scenarios that can arise when a lawyer represents both debtors and creditors. It addresses issues like conflicts of interest, formation of the attorney-client relationship, and handling client funds properly in a client trust account. For example, one scenario discusses whether a law firm would have a conflict of interest if it represented two separate creditors trying to collect debts from the same debtor. The document provides analysis of these scenarios based on legal ethics rules. The goal is to help lawyers navigate the complex issues that can arise when representing both sides in debtor-creditor relationships.
Invoicing and Collecting for your Legal Serviceskhecker
Thoughts and musings on how to get paid for your legal services. THIS IS NOT LEGAL ADVICE. I AM NOT YOUR LAWYER. I WILL NOT BE YOUR LAWYER if you read this. Use at your own risk.
TAM's college is trying to become one of the best educational institutes in the UK. They have hired marketing firms and legal advisors to help achieve this. One marketing firm, NAMS, failed to provide the promised month of promotion, breaching their contract. Additionally, a staff member at TAM's college was injured on duty without proper uniform, and the family sued. TAM's college denied responsibility but may be liable under vicarious liability doctrine. The document discusses contract and tort law relating to these scenarios, including elements of a valid contract, types of contracts, negligence liability, and defenses against negligence claims.
Liquidated Damages post Cavendish v MakdessiAdam Ramlugon
The document discusses a recent UK Supreme Court case that clarified the law around liquidated damages clauses and when they constitute unenforceable penalties. It provides an overview of key points for the superyacht industry based on the court's findings. Specifically, 1) the case did not reinvent prior tests but added other considerations, 2) the pre-estimate of loss test remains important but is part of a wider analysis, and 3) context and proportionality are crucial factors, especially for unique vessels like superyachts. However, large liquidated damages for charter cancellations may still be unenforceable penalties.
When Do Liquidated Damages Become an Irrecoverable Penalty?Sarah Fox
The document summarizes guidelines from the case Makdessi v Cavendish for determining whether a contractual sum is an unenforceable penalty or a valid liquidated damages clause. It outlines seven guidelines from the case, including that a sum is more likely to be considered a penalty if it is extravagant compared to possible losses or applies to breaches of different types. It also notes that the guidelines have limitations and contracting parties have freedom to agree terms, making penalties difficult for courts to invalidate.
This document describes the development of a numerical tool to simulate mixing in a multi-mode ejector-augmented pulsed detonation rocket engine. The tool uses OPENFOAM to solve the Favre-averaged Navier-Stokes equations with detailed hydrogen-air chemistry and the k-ω-SST turbulence model. It aims to understand mixing between primary and secondary flows during mode one operation, when pulsed detonations augment thrust at low speeds. Future work may include integrating the tool with NPSS and adding a nozzle to study effects on thrust and efficiency.
El documento presenta una lista de conjuntos, vestidos, accesorios y artículos para bebés de diferentes tallas y precios. Los productos están hechos a mano de materiales como algodón orgánico y están disponibles para compra contactando a la tienda vía correo electrónico para realizar el pedido y pago. La entrega de productos en stock demora una semana y los productos a pedido de 3 a 5 semanas.
The document discusses the need for critical reading in the post-truth era. It notes that Oxford Dictionaries named "post-truth" as its 2016 word of the year, referring to arguments based on appeals and popularity rather than facts. Both Donald Trump's campaign and the Brexit campaign are cited as examples that distorted decision-making processes with lies and misinformation. The proposed project aims to encourage students to critically analyze information from different media sources and identify language used to promote political viewpoints. Students will analyze news stories across multiple sites and present their findings using Storify, with assessment based on source variety, vocabulary identification, and accuracy.
Este documento describe diferentes herramientas ofimáticas y web aplicadas a la educación y enfermería. Explica programas como Word, Excel y PowerPoint, así como herramientas web como blogs, wikis, YouTube, Flickr y SlideShare. Detalla los usos educativos de cada una y cómo pueden integrarse en el aula para apoyar la enseñanza y el aprendizaje.
Attirer ses premiers utilisateurs n'est pas toujours une chose facilement pour une jeune startup. Lors de ma présentation, je présente 5 techniques que j'ai utilisé pour attirer nos premiers utilisateurs
Tasha Scotten of DHL provided exceptional customer service by helping to secure a crucial parcel for the customer's optometry business. The customer's parcel was delayed and being transported by an unreliable friend arriving in Cape Town. In a panic, Tasha reassured the customer, coordinated directly with him, and sent a representative to the airport to intercept the friend. When the friend forgot the parcel, Tasha had it retrieved from the person who found it, and delivered to the customer as promised, saving his business presentation. The customer was extremely grateful for Tasha's efforts above and beyond normal service to recognize and resolve his desperate situation.
The document provides a summary of Joseph J. Crowley's professional experience in marketing and business development roles spanning over 25 years. It highlights his expertise in client relationship management, marketing strategy, event planning, new business development, and project management.
This document discusses the treatment and functionalization of carbon nanotubes (CNTs). It describes how CNTs are synthesized using various techniques that produce impurities like amorphous carbon and metals. Purification methods are needed to remove impurities while maintaining the CNT structure. Common purification techniques include gas-phase oxidation, liquid-phase oxidation, intercalation, filtration, ultrasonication, and chromatography. Multi-step purification combining chemical and physical methods can effectively remove all impurities. The document also discusses how functionalization is necessary to make CNTs soluble and dispersible in liquids for applications.
Datamax customers gave the company an average score of 9.7 out of 10 for customer satisfaction in 2015 according to a Net Promoter Score survey. The company's actual Net Promoter Score for 2015 was 92.1. Datamax aims to provide comprehensive technology solutions and services to empower customers and enable them to focus on managing their business rather than technology.
This short document promotes creating presentations using Haiku Deck, an online presentation tool. It encourages the reader to get started making their own Haiku Deck presentation and sharing it on SlideShare. In just one sentence, it pitches the idea of using Haiku Deck to easily create engaging presentations.
The MidoNet Community offers a load of web resourced. From documentation to chat to mailing lists to blogs and social media, etc. This presentation features a very quick overview of what's available.
Aschalew Yeshet is applying for a position and provides his qualifications and experience in accounting and finance. He has a Bachelor's degree in accounting and over 12 years of experience working as a finance manager and accountant for projects in Ethiopia. His resume details his educational background, work history managing finances for NGOs, training experiences, skills in accounting software and languages, and references. He is seeking a new position to utilize his academic and professional experience in managing organizational resources and achieving career goals.
This document provides a summary of Neil Fletcher's professional experience and qualifications. It outlines his 30+ years of experience in management accounting roles, including positions as Finance Manager for Community Care Northern Beaches and Chief Financial Officer for KU Children's Services. His achievements in these roles involved implementing new accounting systems, improving financial reporting, managing insurance and fleets, and developing budgets and financial policies. He holds a Bachelor of Business, Diploma of Commerce, and is a Certified Practising Accountant and Registered Tax Agent.
A Bird in the Hand Consideration and One-Sided Contract Modifications.pdfJessica Henderson
This document discusses the legal doctrine of consideration as it relates to contract modifications. It notes that while consideration is commonly viewed as an unnecessary doctrine that hampers contract law, its abolition is unlikely in the near future due to its flexibility. The document specifically examines how consideration requirements create issues for one-sided contract modifications where one party promises to do more or accept less. While courts have offered some solutions, the document argues these can be refined by recognizing that a party receiving promised performance provides a "bird in the hand" practical benefit to the other party, thus satisfying consideration and allowing enforcement of modifications.
UK Adjudicators Newsletter November 2021SeanGibbs12
The document summarizes two recent UK court cases related to construction payment adjudication.
1) In the first case, Quadro sought payment of £40k from Creagh for work under one contract. Creagh argued the adjudicator did not have jurisdiction because three separate invoices were referred, but the court found they constituted a single dispute over the total amount owed.
2) In the second case, CCCL sought £485k from Mincione following a final statement and adjudication decision. Mincione argued liquidated damages should offset this amount. The court found the adjudicator breached natural justice by not considering this defense, making the decision unenforceable.
This Supreme Court of Canada case involves the interpretation of a release agreement between Mary Bailey and the City of Corner Brook. Bailey had been involved in a car accident where she struck a city employee, David Temple, who then sued Bailey. Bailey and the city entered into a settlement agreement and release regarding Bailey's separate lawsuit against the city. However, Bailey later filed a third-party claim against the city in Temple's lawsuit against her. The city argued the release barred this third-party claim. The court had to determine whether there was a special rule for interpreting releases and whether the application judge erred in his broad interpretation of the release to include Bailey's third-party claim.
This document summarizes a legal paper about implied terms in building contracts. It discusses the following key points:
1) Historically, courts were reluctant to modify commercial contracts but would imply terms through legal fiction to address unfair bargains in building contracts.
2) The landmark case The Moorcock established that implied terms are based on the presumed intentions of parties to give business efficacy and prevent failure of consideration.
3) The paper examines how courts distinguish between terms implied by fact and those implied by law, with a focus on construction contracts. It traces the development of this area of law over time.
UK Adjudicators Newsletter December 2021SeanGibbs12
The document summarizes the past use of construction adjudication in Hong Kong from the 1990s to the 2010s. It discusses some of the early contractual adjudication processes used in government and private projects in the 1990s and 2000s. It notes that while adjudication was included in some contracts, few disputes were actually referred to adjudication. A government pilot adjudication scheme in the 2000s also saw low usage. Surveys conducted in the 2010s indicated stakeholders supported introducing statutory adjudication to Hong Kong.
UK Adjudicators March 2019 newsletter with guest articles from Rajiv Bhatt and Katie Lee from Hardwicke Chambers and Sandra Steele from K&L Gates Australia.
February 2019 newsletter of UK Adjudicators.
MACOB 20 years on
NSW adjudication
Hong Kong adjudication
2019 Edinburgh Adjudication and Arbitration Conference
Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2019] EWCA Civ 27 (24 January 2019)
The newsletter discusses recent developments in construction adjudication and prompt payment laws in various jurisdictions.
In the UK, the Supreme Court ruled that an insolvent party can refer disputes to adjudication. Additionally, a case clarified when a delay report constitutes a new claim vs supplemental evidence.
In Canada, several provinces have introduced or are considering introducing prompt payment and adjudication legislation similar to Ontario's regime. The federal government has also passed prompt payment legislation.
New Zealand case law confirmed adjudicators can award statutory damages and consider matters already determined in prior adjudications to prevent repeated claims on the same issues.
- The document summarizes key points from a newsletter published by UK Adjudicators in December 2018.
- It discusses a recent court of appeal case that upheld an employer's right to commence an adjudication to determine the 'true value' of interim payments, even if their initial payment/pay less notices were invalid, so long as the notified sum has been paid.
- It also provides updates on recent and upcoming events involving UK Adjudicators, including conferences attended and planned networking events.
2015 09 10 Peter Boase LLM Dissertation.PdfLeonard Goudy
This dissertation aims to determine whether there is an implied term within the Scheme for Construction Contracts that results in a new cause of action when complying with an adjudicator's decision. The research will critically evaluate two key cases - Jim Ennis Construction Ltd v Premier Asphalt Ltd and Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc - in which two High Court judges disagreed on this issue. The research objectives are to identify relevant case law and legislation, evaluate the two cases and their progression through the courts, and formulate a position on whether the Scheme requires amendment to include an express term addressing this gap. The justification is that clarifying this issue could reduce litigation, tighten adjudication
Real time Attorney advice memo priviledged and confidentialnicemanin
Morris Associates Engineering Consultants filed a mechanic's lien for $19,425.82 for engineering services provided to Orchard Hill Farms between 2007-2008. Orchard Hill Farms argues the lien should be dismissed for two reasons: 1) Morris Associates breached its contract by not completing all services and 2) the lien amount was willfully exaggerated in violation of NY Lien Law. If the lien is voided for exaggeration, Morris Associates would be liable for damages under Lien Law §39a including attorney fees.
A claim for quantum meruit seeks payment for work where the price was not agreed upon. It can be based in contract or restitution. For a contract-based claim, terms of payment will be implied if the contract is silent on price or expressly agrees to reasonable payment. A restitution claim seeks payment to prevent unjust enrichment. A quantum meruit claim will not succeed if a contract governs the situation. A letter of intent or agreement without a price may not create a binding contract if essential terms are missing or the intent to contract is unclear. Carrying out work alone does not create a contract.
UK Adjudicators September 2019 newsletter discussing construction adjudication around the world with a look at the UK, Singapore and Australia in this edition.
This document is a student's dissertation concerning design obligations in construction contracts, specifically focusing on the "Robin Rigg" offshore wind farm case.
The dissertation provides background on the Robin Rigg project and the subsequent failures that occurred in the grouted connections between the turbine foundations. It examines the legal questions around potential "double obligations" of reasonable skill and care versus fitness for purpose in construction contracts. The student analyzes case law from Canada, the US, and England regarding contractual interpretation of these obligations.
The dissertation also reviews the reasoning of the UK High Court and Court of Appeal in the Robin Rigg case, seeking to determine whether double obligations can be compatible and how the courts' literal versus contextual approaches to interpretation affect
The document summarizes two cases where courts recognized a promissory estoppel claim against an employer - Roberts v. Geosource Drilling Services, Inc. and Hernandez v. UPS Supply Chain Solutions, Inc. In Roberts, the employee quit his job and prepared to work for Geosource in reliance on oral promises and a written contract, but Geosource rescinded the job offer. In Hernandez, the employee had actually moved from Illinois to Texas based on a job promise. Both courts found promissory estoppel claims based on the employees' detrimental reliance on the employers' promises.
This newsletter provides updates on adjudication and arbitration events and cases in the UK. It discusses two events that were postponed due to the coronavirus pandemic: the launch of the Construction Industry Council's Low Values Disputes Model Adjudication Procedure and a dispute resolution conference in South Africa. It also provides details of an upcoming conference in London in August. Additionally, it summarizes a recent Court of Appeal case involving Steven Walker QC representing Bester Generacion, in which the court confirmed the "dominant purpose test" for legal advice privilege. Finally, it discusses the implications of this ruling for assessing privilege claims, particularly regarding multi-addressee communications.
This case involves a dispute over entitlement to a partial refund of a special assessment paid into a fund to repair defects in a condominium building. The previous owners, who paid the special assessment, sold the property to the current owners. After the repairs were completed, there was a refund remaining in the fund. Both the previous and current owners claimed entitlement to the refund. The court found that the sale contract between the parties implicitly allocated the risk of any refund or future assessment to the purchasers. As such, the court ruled that the current owners were entitled to the refund as there was a valid contract between the parties providing a juristic reason for the enrichment.
The Supreme Court clarified the code’s object while keeping legislative intent in mind. The court, through this judgement, has struck a balance between creditors’ rights and debtor companies’ remedies.
This document summarizes the proceedings of an arbitration hearing between Chevron Corporation, Texaco Petroleum Company, and the Republic of Ecuador. The hearing addressed the tribunal's jurisdiction over claims related to an arbitration between the US and Ecuador concerning an investment treaty. Counsel for the respondent argued that the tribunal does not have jurisdiction unless the claimants can demonstrate that a 1995 release agreement extends to claims by third parties related to oil extraction operations in Ecuador. The respondent's counsel asserted that the claimants had not met their burden of proof regarding the scope of the release.
The case of Hancock v Brazier (Annerly) Ltd dealt with the issue of implied term in building contracts. In this case, the Court of Appeal held that in a contract for building a house, in the absence of express agreement, three terms should be implied: 1) the builder would do his work in a good and workmanlike manner 2) he would supply good and proper materials and 3) the house would be reasonably fit for human habitation.
1. Issue Spring 2016 TECBAR
Informa Law 1
Issue Spring 2016
The Newsletter of the Technology and Construction Bar Association
Spring 2016
ReviewTECBAR
in association with
Chairman’s Message
I open this issue by thanking all the speakers and
attendees at our annual conference on 30 January. I am
particularly grateful to our President, Lord Dyson MR, for
his keynote address.
I would also like to take this opportunity to congratulate
Terry Bergin and Alexander Hickey of 4 Pump Court,
Kim Franklin of Crown Office Chambers, and Riaz Hussain
of Atkin Chambers on their recent appointment as
Queen’s Counsel.
Looking forward, I would like to comment on two as-
pects relevant to our junior members. First, I am grateful
to Tom Ogden of 4 New Square for organising TECBAR’s
response to the questionnaire sent by Nicholas Bacon
QC, the Chair of the Bar Council’s Working Group, on Lord
Justice Jackson’s recent proposals for fixed fees in cases
valued at less than £250,000. There has been an encour-
aging response from junior members on these potentially
very significant proposals.
Second, I would like to remind TECBAR members of less
than seven years’ call of TECBAR’s partnership with the
Bar Council in the International Legal and Professional
Development Grant Programme. The purpose of the
programme is to support our junior members in attending
international legal events or conferences to further their
professional development. Grants are available from
TECBAR for international events before the end of 2016.
The next deadline for applications is 5pm on 10 June
2016. Further information about the Programme, together
with the application documents, may be found on the
Bar Council’s website. Completed applications should be
sent to our Secretary, Lynne McCafferty of 4 Pump Court.
Moving on to upcoming events, I remind all TECBAR
members that the conference organised jointly by TECBAR
and the Dispute Board Federation, which was due to take
place on 31 March – 1 April 2016 in Hanoi, Vietnam and
which was advertised in the last issue, will now not be
taking place.
However, as always, all TECBAR members are encour-
aged to attend our AGM and Annual Garden Party at
Skinners’ Hall on 21 July 2016. Further details will be
circulated in due course.
Martin Bowdery QC,
Atkin Chambers
From the Editor
This Spring 2016 issue of the TECBAR Review contains
three contributions, each discussing a recent case of
relevance to TECBAR members.
The first, by Robert Scrivener of 4 Pump Court, is an
appraisal of the present state of the law on concurrent
duties in contract and tort in light of the recent decision
in Burgess and Burgess v Lejonvarn [2016] EWHC 40 (TCC).
In the second, Nicholas Maciolek of Atkin Chambers
comments on the decision in Grove Developments
Limited v Balfour Beatty Regional Construction Limited
[2016] EWHC 168 (TCC) and its clarification, among other
things, of the circumstances in which the Scheme for
Construction Contracts may be implied into the parties’
agreement on payment terms.
List of Contents
Contract, tort, and construction 2
Grove Developments Limited v Balfour Beatty Regional
Construction Limited [2016] EWHC 168 (TCC) 4
Cavendish Square Holding BV v Talal El Makdessi and
Parking Eye Ltd v Beavis [2015] UKSC 67 6
2. TECBAR
2 Informa Law
Issue Spring 2016TECBAR
Finally, pupil barrister Mathias Cheung contributes a
case-note on the Supreme Court’s decision in the combined
cases of Cavendish Square Holding BV v Talal El Makdessi
and Parking Eye Ltd v Beavis [2015] UKSC 67 and its re-
assessment of the limits and rationale of the doctrine of
penalties.
I am sure TECBAR members join me in congratulating
Mathias on winning First Place in the 2016 Hudson Prize for his
essay on the Makdessi decision, Shylock’s Construction Law:
The Brave New Life of Liquidated Damages? The essay is to be
published shortly.
Christopher Reid, Atkin Chambers
Contract, tort, and construction
Over 20 years since Henderson v Merrett, and the boundary
between contract and tort continues to be a difficult one to
define. The TCC has, frequently, been required to consider that
boundary. It did so most recently in Burgess v Lejonvarn [2016]
EWHC 40 (TCC).
In that case, the claimant alleged that the defendant had
performed architectural services in relation to a landscaping
project, and owed him contractual and tortious duties when
carrying those out.
The Judge rejected the contractual claim for three reasons.
First, the services were gratuitous, so there was no consideration.
Second and thirdly, the parties had not reached a sufficiently
certain agreement, and nor was there an intention to create
legal relations.
However, he did find there was a duty of care in tort, the
scope of which extended to various matters relating to the
selection of contractors, the preparation of designs, and so on.
This short article tries to place Burgess in context in respect of
pure economic loss claims.
Contract and tort
As Jackson LJ reminded us in Robinson v Jones, contractual and
tortious obligations have different legal sources.1
This approach
is consistent with modern private law theory, which would
split the law into separate “events” which give rise to separate
“obligations” in response.2
This way, the division between contract and tort should be
clear. The “event” which gives rise to a contract is an agreement.
The “event” which gives rise to tortious obligations is a “wrong”.
Thus, unlike contractual obligations, tortious obligations are
imposed by law, and not the consent of the parties.3
In the real world, however, things are not quite so clear cut.
Matters have become complicated by the fact that a contract
can give rise to duties in tort, whether these be concurrent4
or
owed to third parties.5
That problem is not helped by the fact
that one way for deciding whether there is a duty of care is to
1 [2012] QB 44, paragraph 79.
2 See, e.g., P. Birks Unjust Enrichment (2nd
Ed.), chapter 2 (“Three Maps”).
3 See P. Winfield at p. 32 of The Province of the Law of Tort (1931): “Tortious
liability arises from the breach of a duty primarily fixed by the law; such duty
is towards persons generally…”.
4 Henderson v Merrett [1995] 2 AC 145.
5 White v Jones [1995] 2 AC 207.
ask if there was an assumption of responsibility.6
This test is
almost bound to look, on at least some level, at what the parties
agreed (even just tacitly). Questions of consent and agreement
are, therefore, highly relevant for deciding whether a duty of
care was owed.
There are two different types of case to consider:
(a) Where a claimant has a contract with a defendant, but
nonetheless tries bringing a tortious claim.
(b) Where a claimant does not have a contract with a
defendant, so can only bring a tortious claim.
Where there is a contract
This type of case gives rise to the familiar problem of concurrent
liability. It is widely accepted that, whilst it is always open to a
claimant to choose their most favourable cause of action, they
should not be able to rely on tort if that would undermine what
they have agreed under the contract.7
In similar vein, the Court
of Appeal has recently held that, if there is to be concurrent
liability, then in the event of a conflict between the contractual
and tortious tests for remoteness of damage, the former should
prevail.8
The leading (construction) case on whether there can be
concurrent liability is, of course, Robinson v Jones.9
The well-
known facts concerned a claim against a builder who, it was
alleged, had negligently constructed chimney flues. Limitation
in contract had expired, but by virtue of s.14A of the Limitation
Act, a tortious claim would be in time.
6 So too with asking whether the relationship was “akin to contract”.
7 There are many examples. One of the more emphatic is Central Trust Co. v
Rafuse (1986) DLR (4th
), 481, 521 – 522 : “A concurrent or alternative liability
in tort will not be admitted if its effect would be to permit the plaintiff to
circumvent or escape a contractual exclusion or limitation of liability for the
act or omission that would constitute the tort. Subject to this qualification,
where concurrent liability in tort and contract exists the plaintiff has the
right to assert the cause of action that appears to be most advantageous to
him in respect of any particular legal consequence”.
8 Wellesley v Withers [2015] EWCA Civ 1146.
9 For earlier cases, see Ove Arup v Mirant Asia-Pacific (No.2) [2005] PNLR 10
(engineer with design responsibility owed a duty of care in respect of pure
economic loss) Payne v John Setchell Ltd. [2002] PNLR 7 (engineer with design
responsibility did not owe a duty) and Storey v Charles Church Developments
Ltd. 73 Con LR 1 (designer owed a duty).
3. Issue Spring 2016 TECBAR
Informa Law 3
TECBAR
However, the Court of Appeal10
thought no duty of care existed.
There had been no assumption of responsibility. “Professional
persons” could be taken to have assumed responsibility, since
they give advice, and expect their clients to rely on them.11
But
that was not the case here: the contract was “normal”, and the
defendant was simply to build to an agreed plan.
The test the Court of Appeal posed was, in effect, to ask
whether the defendant was being relied on. That would (often)
be the case where design work was in question, as where other
“professional persons” were engaged, but not in the case of a
builder.12
However, it is not clear why a careless builder should
be in any better position than a careless architect. There is no
“magic” in design, and many decisions that have to be made in
a construction project can be seen as design choices.13
Further, Robinson fails to explain why professional advice (such
as that given by an architect) justifies a duty, whereas “mere”
building work does not.14
The importance given to the question
of whether a person was a “professional” is unsatisfactory.15
If
we are to have concurrent liability, a better approach would
be to do away with any reliance on the concept of whether
the defendant was a “professional person”.16
The focus should
always be on whether the duty would be inconsistent with the
contract, and those parts of Robinson that adopt this approach
are to be welcomed.
Where there is no contract
On the face of it, this type of case should not give rise to the
same problems as concurrent liability. After all, if there is no
contract between the parties, how can the imposition of a
tortious duty undermine what they have (not) agreed?
However, there will often be a deliberate reason why the
parties are not in a contractual relationship. Thus, there is no
contract between an employer and sub-contractor because they
placed the contractor in the middle. They should not then be
allowed to complain when (for whatever reason) their rights
against that contractor appear unsatisfactory to them.
10 Which included Jackson L.J., who has given a cool reaction to concurrent
liability: see Concurrent Liability: Where Have Things Gone Wrong? (TECBAR
lecture, 30 October 2014).
11 Paragraph 75.
12 The references to “professional person” echo Lord Goff in Henderson, who
thought that there could be a duty of care where a “special skill” was being
exercised and relied on (at pp. 178 – 181).
13 See paragraph [76] of Bellefield Computer Services v E Turner & Sons Ltd.
[2002] EWCA Civ 1823: “A carpenter’s choice of a particular nail or screw is in
a sense a design choice …”.
14 J. O’Sullivan at [2011] 70 CLJ 291, 293.
15 Using Lord Goff’s language, it is, presumably, the case that a builder is not
thought to exercise a “special skill”, whereas an architect is.
16 Perhaps a better approach still would be to deny the possibility of concurrent
liability in tort and contract. It is notable that concurrent liability in contract
and unjust enrichment is much more restricted: The Trident Beauty [1994] 1
WLR 161.
That no tortious duty is imposed in such a situation is well-
established. An early case was Simaan v Pilkington Glass Ltd.17
There, the claimant contractor had sub-contracted the supply
and erection of curtain walling. The sub-contractor in turn
engaged the defendant to supply the materials. When the
defendant supplied unsatisfactory materials, the claimant could
not recover in tort for the financial loss they suffered from this.
According to Sir Thomas Bingham M.R., the claimant did not rely
on the defendant (the latter was simply performing its contract)
and it was not just and reasonable to impose a duty.18
A more recent example is Sainsbury’s Supermarkets Ltd. v
Condek Holdings Ltd.19
Here, and following earlier authority,20
Stuart-Smith J held that structural engineers (engaged by the
contractor) did not owe the employer a duty in respect of their
design works. He considered that, as with a sub-contractor who
provides work and materials, a sub-contracted designer does
not normally assume responsibility to the employer. The case is
notable because, as stated, the defendant was a “professional
person” of the type discussed in Robinson. It thus might have
been thought more likely to owe a duty than a sub-contractor
acting as builder alone.21
Not all cases go the same way, however. In Jarvis & Sons
Ltd. v Castle Wharf Developments Ltd.,22
the Court of Appeal
held there was no reason in principle why a project manager
engaged by the employer could not become liable to a contractor
for negligent mis-statements made in respect of the tendering
process. One justification for this finding might be that there
was no contract between employer and contractor at the time
of the mis-statements,23
and so no contractual chain could be
undermined.24
There are also the hard cases of IBA v EMI25
and Junior Brooks
Ltd. v Veitchi Co. Ltd.26
However, in the former, the duty question
was conceded. The latter, at least until the Supreme Court has a
chance to overrule it, is best seen as confined to its own facts.
In general terms, no duty of care should be owed where this
would cut across the contractual structure.27
17 [1988] QB 758.
18 Pages 781 – 782.
19 [2014] EWHC 2016 (TCC).
20 Architype Projects Ltd. v Dewhurst McFarlane & Partners [2004] PNLR 38.
21 Though this was most unlikely after Ove Arup, where a similar argument was
rejected, albeit the emphasis in that decision was on the fact the intricate
contractual regime excluded a duty.
22 (2001) 17 Const. LJ 430.
23 Paragraph 53.
24 Note that the Court did not, however, finally determine the duty question
(paragraph 59). Also cf. Pacific Associates v Baxter [1990] 1 QB 993 and
Galliford Try v Infrastructure Ltd. [2008] EWHC 15 (TCC).
25 (1980) 14 BLR 1.
26 [1983] 2 AC 520.
27 For an excellent academic discussion about suing in tort where there is no
contract claim, see J. O’Sullivan in (2007) 23 PN 165.
4. Issue Spring 2016TECBAR
4 Informa Law
Back to Burgess
Where does this leave Burgess? Is it right to say that, because
there was no contract, tort can freely impose obligations without
concerning itself about the parties’ autonomy?
No, in my view. That would be too simplistic a line to take.
Where parties have failed to reach a consensus about their
obligations, there might (depending on the facts) be something
unpalatable about the idea of tort imposing wide ranging duties
nonetheless. A compelling reason against finding a duty in
Burgess was that there was no agreement capable of giving
rise to a contract, and no intention to create legal relations.28
1
28 Also relevant is the fact the defendant was performing services gratuitously,
At least sometimes, a lack of agreement must be a reason for
finding no responsibility was assumed. Otherwise, a claimant
may find itself with a windfall, having the benefit of various
tortious obligations that it would never have been able to obtain
contractually. Great care needs to be taken to ensure that the
law of tort does not end up undermining what the parties
agreed (or not, as the case may be).
Robert Scrivener,
4 Pump Court
which was thought important in Thornbridge Ltd. v Barclays Bank PLC [2015]
EWHC 3430 (QB), paragraphs 63 and 96(i).
Grove Developments Limited v Balfour Beatty Regional Construction Limited
[2016] EWHC 168 (TCC)
The HGCRA 1996 requires that every construction contract should
incorporate certain core provisions relating to adjudication and
payment – in the absence of such provisions, the fall-back terms
of the Scheme for Construction Contracts are implied into the
contract. These provisions of the Act were intended to ‘provide
a framework for fairer contractual arrangements and better
working relationships in the construction industry’.1
2
However,
as is the case with any statutory implied term, they serve as an
exception to the general principle that ‘parties to a contract are
free to determine for themselves what primary obligations they
will accept’.2
3
In the recent TCC decision of Grove Developments,
the proper balance between statutory implied terms and terms
agreed by the parties was at issue, alongside some classic
questions of interpretation regarding the objective intention of
the parties themselves.
Stuart-Smith J was asked to determine whether a contractor
was entitled to make an application for an interim payment
in circumstances where the contract terms only countenanced
interim payments for a limited period of the total duration of
the works, and where the relevant application had been made
after that more limited period had ended.
Grove Developments (‘GDL’) employed Balfour Beatty
Regional Construction (‘BB’) to design and construct a hotel
and apartment complex. The contract was a JCT Design and
Build Contract 2011 with bespoke amendments. It provided
for works to begin in July 2013, and for a completion date of
22nd
July 2015.
The parties agreed that interim payments under ‘Alternative A’
of the JCT form would apply. Alternative A provides for stage
payments of fixed amounts to be made on the completion of
defined elements of works under the contract. In their contract,
the parties did not agree what the stages would be, recording
1 Viscount Ullswater, Hansard vol 569 cc1005-31
2 Photo Production Limited v Securicor Transport Limited [1980] A.C. 827 at 848.
instead that they would be agreed within two weeks of the
contract’s entry into force. However, the parties did not come
to the anticipated agreement on stage payments. Instead, they
agreed a variation to their contract in the form of an agreed
schedule setting out periodic payments numbered 1-23 based
on valuations at particular dates between September 2013 and
July 2015. The agreed schedule specified that payment would be
made 30 days from the valuation date.
The works were not completed by July 2015. In around May
2015, the parties had entered into correspondence concerning
the possibility of future payments after interim payment 23
under the agreed schedule. BB sent a proposed schedule of
further payments to GDL which was substantially in the same
form as the agreed Schedule, save that it provided for payment
28 days from the valuation date. GDL responded with a Schedule,
which was materially the same as BB’s proposal, except that it
provided for payment 28 days from the due date.
In August 2015, BB issued its 24th application for payment
(‘IA24’). GDL issued a payment notice and a pay less notice in
respect of that application, both of which were drafted on the
basis that BB was entitled to payment 28 days from the due
date. GDL paid the sum set out in its pay less notice. Two weeks
later it disputed BB’s entitlement to payment under IA24.
Compliance with the HGCRA 1996
A central issue in the case was whether the agreed schedule of
payments complied with the provisions of s.109 of the HGCRA
1996. BB relied upon the fact that s.109(1) entitled it to interim
payments for ‘any work done’. In BB’s submission that provision
extended its entitlement to interim payment for all its works;
as the agreed interim payment schedule only covered some of
the works that had been carried out, it was not compliant with
s.109 of the HGCRA.
The judge first considered what the consequences of
BB’s argument would be if it were right. He came to the
5. Issue Spring 2016 TECBAR
Informa Law 5
conclusion – taking into account the Scots case of Hills Electrical
& Mechanical v Dawn Construction Ltd,3
4
and the TCC decision
in Yuanda (UK) Co Ltd v WW Gear Construction4
5
– that if a
construction contract does not meet the requirements of ss.109
or 110 of the HGCRA, it does not automatically import all the
terms of the Scheme for Construction Contracts. Only those
provisions necessary to make up for the inadequacy in the
construction contract will be implied.
However, that finding did not apply in Grove because the judge
rejected the suggestion that interim payments had to cover the
entire period of works:
i. to read the HGCRA in that way would ‘be a draconian
restriction on the freedom of commercial parties to
contract on terms of their choosing’;
ii. s.109(2) makes clear that the parties are given
substantial liberty in agreeing the terms of their stage
or interim payment regime;
iii. even on BB’s reading of the HGCRA, whereas the interim
payments would have to apply to all the works, the
parties would still be free to adopt any amount or any
interval for those payments. On that basis, the interim
payments could still have been nil, front-loaded in
advance of the work done, or made very late on.
Stuart-Smith J also endorsed the view of the editors of Keating
on Construction Contracts that a contract prescribing one
periodic payment of even an insignificant amount would meet
the requirements of s.109.5
6
The terms of the contract
Stuart-Smith J also considered two further arguments based on
the terms of the contract themselves that:
i. there was an implied term of the contract which
entitled BB to interim payments after valuation 23;
ii. the parties’ subsequent discussions regarding
payments after valuation 23 amounted to a variation
providing for further payments.
Stuart-Smith J’s approach took into account the recent
decision of the Supreme Court in Arnold v Britton.6
7
He noted
that business common sense will only be used to interpret a
contract with more than one meaning, and that a court should
3 [2004] SLT.
4 [2010] BLR 435.
5 Keating on Construction Contracts 9th
ed at 18-057. It should be noted that the
Act creates an entitlement to ‘interim payments’ in the plural.
6 [2015] AC 1619.
not strain to find ambiguity in a clause where none exists. In
any event, Stuart-Smith J expressed caution about the validity
of business common sense arguments, because ‘what appears
to be business common sense may depend upon the standpoint
from which the question is asked.’
With regard to the possible existence of an implied term,
Stuart-Smith J first rejected that there was any ambiguity in the
provisions of the contract. He found that the agreed schedule
listing interim payments 1-23 evinced the parties’ clear intention
that those payments were intended to be exhaustive, and no
further entitlement to payment could be implied.
That notwithstanding, he went on to consider the business
common sense of such an interpretation. The judge observed
that limiting interim payments to the planned duration of the
contract served the commercial aim of putting pressure on
BB to finish its work on time. He was not persuaded by the
suggestion that it did not make business common sense for that
financial pressure to be placed on BB irrespective of whether
any delays in the works were its fault. Although BB might wish
to have protected its position from such an outcome, he did not
consider that to affect the underlying commercial reality of the
situation.
Moreover, the judge did not find that the parties made a
subsequent variation to their interim payment arrangements by
way of their proposed schedules in and around May 2015. He
held that the terms on which the interim payments were to be
made were crucial to the formation of any agreement. As the
parties could not expressly agree as to whether payment should
be made 28 days from the valuation date or 28 days from the
due date, no variation had arisen.
Stuart-Smith J’s judgment provides helpful clarity where the
partial application of the Scheme for Construction Contracts to
non-compliant construction contracts is concerned. There is
also little doubt that his application of Arnold v Britton will
be of relevance to many other construction disputes in future.
Perhaps most significantly, Grove Developments v Balfour Beatty
is a case which emphasises the parties’ freedom of contract in
the context of statutory implied terms. Stuart-Smith J’s decision
makes clear that a de minimis interim payment mechanism
will be adequate to satisfy s.109 of the HGCRA. Whether that
approach will always satisfy the statutory purpose of facilitating
cash-flow in construction contracts is open to question.
It should be noted that Balfour Beatty Regional Construction
has been granted leave to appeal Stuart-Smith J’s decision to
the Court of Appeal, in a hearing scheduled for July 2016.
Nicholas Maciolek,
Atkin Chambers
6. Issue Spring 2016TECBAR
6 Informa Law
Cavendish Square Holding BV v Talal El Makdessi and Parking Eye Ltd v Beavis
[2015] UKSC 67
The doctrine of penalties is well known (even if not always well
understood), ever since Lord Dunedin’s authoritative exposition
in Dunlop Pneumatic Tyre v New Garage and Motor Co Ltd,1
which has effectively cemented the ‘genuine pre-estimate of
loss’ test with ‘the status of a quasi-statutory code’.2
In the construction context, the traditional dichotomy
between a liquidated damages clause and a penalty clause
depended on whether the sum stipulated by an employer is
designed to compensate him for foreseeable losses caused by
late completion. However, as the editors of Hudson’s Building
and Engineering Contracts noted, ‘there are no recent reported
cases where the amount of liquidated damages agreed in a
construction contract have been held to be penal’.3
Many would no doubt recall what Diplock LJ famously confessed
exactly five decades ago: ‘I make no attempt, where so many
others have failed, to rationalise this common law rule’.4
Five
decades later, in a joined appeal of two starkly different cases,
the Supreme Court has decided to make such an attempt – in
five separate judgments running to 123 pages.
The decisions in the Court of Appeal
Cavendish Square Holding BV v Talal El Makdessi
The first appeal concerned a share sale agreement which
restricted competition by the seller, Mr Makdessi, of the shares
sold to the buyer, Cavendish Square. Mr Makdessi was in breach
of his fiduciary duties, and under clause 5.1, he was disentitled
from receiving interim/final payments for the shares. Under
clause 5.6, Cavendish Square had a further ‘put option’ to
purchase all of Mr Makdessi’s shares. It was argued that those
clauses are penal.
The Court of Appeal noted a ‘new approach’ in recent
authorities.5
Christopher Clarke LJ acknowledged that the
court is adopting ‘the broader test of whether the clause was
extravagant and unconscionable with a predominant function
of deterrence; and robustly declining to do so in circumstances
where there was a commercial justification for the clause’.6
His
Lordship nonetheless applied the Dunlop test, holding that the
clauses are not genuine pre-estimates of loss,7
and then went
1 [1915] AC 67 at 86-88.
2 [2015] UKSC 67 per Lords Neuberger and Sumption at [22].
3 (13th
edn, 2015) at [6-045].
4 Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1446-47.
5 E.g. Lordsvale Finance plc v Bank of Zambia [1996] QB 752 per Colman J at 763-
64; Cine Bes Filmcilik ve Yapimill v United International Pictures [2003] EWCA
Civ 1669 per Mance LJ at [15]; Murray v Leisureplay [2005] EWCA Civ 963 per
Arden LJ at [46]-[54].
6 [2013] EWCA Civ 1539 at [104].
7 At [105]-[117].
on to conclude that the clause acts as a deterrent and cannot
be saved by its commercial justification.8
Parking Eye Ltd v Beavis
The second appeal involved a very different but much more
relatable type of clause – a parking charge of £85 (reducible to
£50 on prompt payment) imposed on motorists for overstaying
the maximum free parking period. Mr Beavis refused to pay the
charge and argued that it was a penalty clause. An unassuming
small claim in the county court thus transfigured into a valiant
crusade on behalf of all motorists on the Clapham Omnibus,
making its way to the Court of Appeal.
Moore-Bick LJ observed that a clause is not penal ‘if it can be
justified commercially and if its predominant purpose is not to
deter breach’.9
His Lordship held that the charge was not penal
because of a ‘combination of factors, social and commercial’,
even though its principal purpose was deterrent.10
In reaching
this conclusion, strong support was drawn from the Protection
of Freedoms Act 2012.11
Sir Timothy Lloyd also agreed that in a non-commercial
contract, an intention to deter is ‘not sufficient in itself to
invalidate the term’, but stressed that the penalty rule still
applies ‘[i]f the charge were grossly disproportionate’.12
Thus, it
is eminently clear that the decision was based on the particular
facts and nature of the charge.
The Supreme Court’s new test
The Supreme Court prefaced its judgment with the observation
that the ‘test for distinguishing penal from other principles is
unclear’.13
After a comprehensive discourse on the case law,14
the
Supreme Court categorically refused to abrogate the doctrine,
but decided instead to reformulate the test.
Lords Neuberger and Sumption concluded that the doctrine
has become a ‘prisoner of artificial categorisation’ based on an
‘unsatisfactory distinction’ between a penalty and a genuine
pre-estimate of loss. Their Lordships held that a deterrent is not
‘inherently penal’, and the ‘true test is whether the impugned
provision is a secondary obligation which imposes a detriment
on the contract-breaker out of all proportion to any legitimate
interest of the innocent party in the enforcement of the primary
obligation’.15
The other Justices reached similar conclusions.16
8 At [118]-[122].
9 [2015] EWCA Civ 402 at [21].
10 At [27].
11 At [28].
12 At [51].
13 [2015] UKSC 67 per Lords Neuberger and Sumption at [3].
14 At [3]-[28]; also per Lord Mance at [131]-[151], and per Lord Hodge at [219]-[254].
15 At [31]-[32].
16 Per Lord Mance at [152], per Lord Hodge at [255], and per Lord Toulson at [293].
Continued on p8
7. Construction on i-law.com
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