The newsletter provides updates on an upcoming conference for UK adjudicators and arbitrators, as well as summaries of recent court cases related to construction law. The main document case summary describes a case where the court found that an expert could be considered independent even if they had previously acted for the party instructing them, as long as they fulfilled their duty to provide an independent expert opinion to the court. However, the case also showed that relying on an expert with close ties to one party is not necessarily the best approach. The newsletter provides additional summaries of construction law cases from UK courts between January and July 2022.

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EDITORS COMMENTS
UK Adjudicators London 2022 Adjudication and
Arbitration Conference will be our largest
physical conference held to date . It takes place
on the 27 October 2022 at 1 Wimpole Street,
London and is an excellent way to mark our
fifth anniversary. It will be taking place in the
Guy-Whittle Auditorium and we have a total
capacity of three hundred, after less than a
week there are only 200 tickets left so make
sure you book your ticket before they sell out.
If you scan the QR code below it will take you
to the booking page.
If you are interested in speaking or sponsoring
do let us know as we already have great
interest and it would be a shame to miss out on
this opportunity.
Matt drake is working on some events for the
North West and revised dates should be
available shortly as will be links for bookings.
I hope you manage to take some time off in
August and look forward to seeing you at
events again in September around the
country.
As always we welcome news, articles, and case
commentaries for publication in the
newsletter.
Sean Gibbs LLB(Hons) LLM MICE FCIOB FRICS
FCIARB, is the Chief Executive Officer of
Hanscomb Intercontinental and is available to
sit as an arbitrator, adjudicator, mediator,
quantum expert and dispute board member.
sean.gibbs@hanscombintercontinental.co.uk

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COLDUNELL LTD V HOTEL
MANAGEMENT INTERNATIONAL
LTD [2022] EWHC 1290 (TCC)
Can an expert be independent if they
have acted for the party instructing
them ?
The TCC has answered this question in a case
concerning dilapidations at a hotel in Surrey.
Both parties instructed experts, Coldunell’s
expert was very familiar with the property
having first been instructed by Coldunell in
2014 to deal with an insurance claim arising
out of flooding.
The expert conducted a number of inspections
over many years and also when the Lease
ended. At this point they spent three to four
days at the property taking photographs and
then assisting with videos. The expert was also
the contract administrator for some external
works and boiler repairs, so he had personal
knowledge of what work was required, what
was done and why it was required.
The defendants argued that the expert could
not be independent because of the dual role
both dealing with the dilapidations claim and
acting as contracts administrator for the repair
and remedial works. The Judge did not
consider that this duality of roles prevented
the expert from giving their genuinely held
independent expert opinion to the Court and
having seen cross examination and evidence in
chief was happy that the Claimant’s expert
could fulfil the role.
The court held it was reasonable and
proportionate for the Claimant to rely on the
expert given the expert’s detailed knowledge
of the condition of the property and works
required as the sums in the proceedings were
only around one million pounds it was
necessary to instruct another expert.
The Judge formed the view having carefully
listened and observed that the expert gave
evidence in a forthright and measured manner,
clearly accepting the limits of their knowledge
in relation to certain matters and making
concessions where appropriate. Overall, the
expert was seeking to assist the Court and
clearly understood the need to perform an
independent role.
The defendant’s expert regularly acted in
adjudications and from time to time as an
expert witness in them; however, this was the
first occasion that they had actually given
expert evidence in Court. The Judge
considered it clear that the expert was arguing
the Defendant’s case and was not fulfilling
their duty to the court.

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The expert foolishly said at one point it was our
case. The expert did not answer counsel’s
questions when posed, challenged the veracity
of the underlying factual evidence presented
by the Claimant, relied on their own argument
rather than expert opinion, and totally
disregarded the merits of the argument being
advanced by the Claimant.
The situation was made worse by the obvious
lack of credibility in relation to several of the
opinions expressed such as insisting that the
boilers were in good and substantial repair and
condition despite the substantial body of
evidence contradicting this.
The expert had not carried out any inspection
of the property and their opinion was based on
a view limited number of the available
photographs. The Judge commented that the
impression given to the Court was that the
expert had taken a very slap dash approach.
The expert was an advocate for their client and
not acting as an independent expert. The result
was that the Judge felt unable to place any
reliance on their evidence.
It is clear that an expert can be independent if
they have acted for the party instructing them,
but this is not necessarily the best or safest way
to advance a case.
TCC COURT JUDGEMENTS
January
• Atos Services UK Ltd v Secretary of
State for Business, Energy, and
Industrial Strategy & Anor [2022]
EWHC 42 (TCC) (17 January 2022)
• Avantage (Cheshire) Ltd & Ors v GB
Building Solutions Ltd & Ors [2022]
EWHC 171 (TCC) (31 January 2022)
• Bilton & Johnson (Building) Co Ltd v
Three Rivers Property Investments
Lt [2022] EWHC 53 (TCC) (14 January
2022)
• Cambridgeshire County Council v Bam
Nuttall Ltd & Ors [2022] EWHC 275
(TCC) (18 January 2022)
• Good Law Project Ltd & Anor, R (On
the Application Of) v The Secretary of
State for Health and Social Care [2022]
EWHC 46 (TCC) (12 January 2022)
• Hirst & Anor v Dunbar & Ors [2022]
EWHC 41 (TCC) (14 January 2022)
• John Graham Construction Ltd v
Tecnicas Reunidas UK Ltd [2022]
EWHC 155 (TCC) (27 January 2022)
• Lumley v (1) Foster & Co Group Ltd &
Ors [2022] EWHC 54 (TCC) (14 January
2022)

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• Qatar Airways Group QCSC v
Airbus [2022] EWHC 285 (TCC) (20
January 2022)
• The Sky's the Limit Transformations
Ltd v Mirza [2022] EWHC 29 (TCC) (10
January 2022)
• Transparently Ltd v Growth Capital
Ventures Ltd [2022] EWHC 144
(TCC) (26 January 2022)
February
• Excession Technologies Ltd v Police
Digital Service [2022] EWHC 413
(TCC) (25 February 2022)
• Naylor & Ors v Roamquest Ltd &
Anor [2022] EWHC 277 (TCC) (02
February 2022)
• Struthers & Anor v Davies (t/a Alastair
Davies Building) & Anor [2022] EWHC
333 (TCC) (18 February 2022)
March
• Smith & Anor v Howard & Anor [2022]
EWHC 562 (TCC) (16 March 2022)
April
• Alame & & Ors v Royal Dutch Shell Plc
& Anor [2022] EWHC 989 (TCC) (29
April 2022)
• Bexheat Ltd v Essex Services Group
Ltd [2022] EWHC 936 (TCC) (19 April
2022)
• Evolve Housing + Support v Bouygues
(UK) Ltd & Ors [2022] EWHC 906
(TCC) (13 April 2022)
• The House Maker (Padgate) Ltd v
Network Rail Infrastructure [2022]
EWHC 1482 (TCC) (05 April 2022)
• IBM United Kingdom Ltd v Lzlabs
GmbH & Ors [2022] EWHC 884
(TCC) (11 April 2022)
• McAlpine Ltd v Richardson Roofing Co
Ltd [2022] EWHC 982 (TCC) (01 April
2022)
• Qatar Airways Group QCSC v Airbus
SAS [2022] EWHC 1247 (TCC) (26 April
2022)
• The Rugby Football Union v Clark
Smith Partnership Ltd & Anor [2022]
EWHC 956 (TCC) (29 April 2022)
May
• Advance JV & Ors v Enisca Ltd [2022]
EWHC 1152 (TCC) (16 May 2022)
• Coldunell Ltd v Hotel Management
International Ltd [2022] EWHC 1290
(TCC) (27 May 2022)

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• Liverpool City Council v Vital
Infrastructure Asset Management
(Viam) Ltd [2022] EWHC 1235
(TCC) (Date Handed Down: 24 May
2022)
• Nicholas James Care Homes Ltd v
Liberty Homes (Kent) Ltd [2022] EWHC
1203 (TCC) (19 May 2022)
• Northumbria Healthcare NHS
Foundation Trust & Anor v Lendlease
Construction (Europe) Ltd &
Anor [2022] EWHC 1266 (TCC) (25 May
2022)
• Standard Life Assurance Lid v Gleeds
(UK) (a firm) & Ors [2022] EWHC 1310
(TCC) (27 May 2022)
• Tjd Trade Limited v Bam Construction
Limited [2022] EWHC 1285 (TCC) (26
May 2022)
June
• Braceurself Ltd v NHS England [2022]
EWHC 1532 (TCC) (20 June 2022)
• Camelot UK Lotteries Ltd v The
Gambling Commission [2022] EWHC
1664 (TCC) (29 June 2022)
• Curtiss & Ors v Zurich Insurance Plc &
Anor (Costs) [2022] EWHC 1514
(TCC) (17 June 2022)
• Curtiss & Ors v Zurich Insurance
Plc [2022] EWHC 1749 (TCC) (01 June
2022)
• Essential Living (Greenwich) Ltd v
Elements (Europe) Ltd [2022] EWHC
1400 (TCC) (08 June 2022)
• FTH Ltd v Varis Developments
Ltd [2022] EWHC 1385 (TCC) (08 June
2022)
• Mallino Development Ltd v Essex
Demolition Contractors Ltd [2022]
EWHC 1418 (TCC) (10 June 2022)
• The Metropolitan Borough Council of
Sefton v Allenbuild Ltd [2022] EWHC
1443 (TCC) (20 June 2022)
• Ml Hart Builders Ltd v Swiss Cottage
Properties Ltd [2022] EWHC 1465
(TCC) (15 June 2022)
• Orchard Plaza Management Company
Ltd v Balfour Beatty Regional
Construction Ltd [2022] EWHC 1490
(TCC) (16 June 2022)
• Specialist Building Products Ltd (t/a
Profile 22 Systems) v New Century
Doors Ltd [2022] EWHC 1571 (TCC) (20
June 2022)

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July
• Barkby Real Estate Developments Ltd v
Cornerstone Telecommunications
Infrastructure Ltd [2022] EWHC 1892
(TCC) (21 July 2022)
• Buckingham Group Contracting Ltd v
Peel L&P Investments and Property
Ltd [2022] EWHC 1842 (TCC) (15 July
2022)
• Innovate Pharmaceuticals Ltd v
University of Portsmouth Higher
Education Corporation [2022] EWHC
1681 (TCC) (01 July 2022)
• Martlet Homes Ltd v Mulalley & Co
Ltd [2022] EWHC 1813 (TCC) (14 July
2022)
• National House-Building Council v
Vascroft Contractors Ltd [2022] EWHC
1881 (TCC) (19 July 2022)
• Omya UK Ltd v Andrews Excavations
Ltd & Anor [2022] EWHC 1882
(TCC) (19 July 2022)
HART BUILDERS LTD V SWISS
COTTAGE PROPERTIES LTD [2022]
EWHC 1465 (TCC)
Hart Builders made an application seeking a
declaration that a decision of an adjudicator
was wrong and no longer binding upon the
Parties. The Adjudicator had decided that the
matter at issue between the Parties had been
settled by an Acceptance Agreement so did not
go onto determine other matters referred .
The Judge decided that the Adjudicator was
mistaken and needed to answer if Hart was,
entitled to launch a fresh adjudication. Swiss
Cottage said they could not, relying on the
effect of Paragraph 9(2) of the statutory
scheme, which prevents two adjudications
about the same dispute.
Because of the incorrect decision reached on
settlement the Adjudicator did not make any
decision on the other matters referred
therefore, now that the decision on settlement
had been held to be wrong, a second
adjudicator was free to decide the issue on its
merits and deal with the other matters
referred.

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https://www.drb.org/events-calendar
Thursday, August 4, 2022 - 5:00
PM
SCL Networking Evening
London
Venue: The Fable Bar, Holborn Viaduct,
London EC1A 2FD
Full details in this flyer
For more info
Tuesday, September 6,
2022 - 6:30 PM
Martlet v Mulalley: Has the Court told us all we
need to know about Cladding Fire Safety Claims
post Grenfell?
London, Online
Speaker(s): Jonathan Selby QC and
Tom Coulson
Venue: National Liberal Club, 1
Whitehall Pl, Westminster, London
SW1A 2HE
For more info
Friday, September 9,
2022 - 12:15 PM
The SCL Lunch in Leeds
Leeds

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AUGUST 2022 NEWSLETTER
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Speaker(s): Julian Norton, The star of
the TV series the Yorkshire Vet
Venue: Leeds Marriott Hotel, 4
Trevelyan Square, Boar Lane, Leeds
LS1 6ET
Full details in this flyer
For more info
Thursday, September 15,
2022 - 6:00 PM
Building a claim by extrapolation – the legal and
evidential blocks
Manchester
Chair: Andrew Singer QC
Speaker(s): Andrew Singer QC and
HHJ Stephen Davies
Venue: Friends Meeting House, Room
G1, 6 Mount Street, Manchester M2
5NS
For more info

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SCL INTERNATIONAL CONFERENCE
2023
The Society of Construction Law 10th
International Conference will be hosted by SCL
Turkey in Istanbul in 2023.
https://www.constructionlaw2023.com/detail
s
ANNUAL
CONFERENCE
2022
REGISTER NOW
The Society's Twenty First Annual
Conference will be held in Edinburgh.
The key note speaker will be Lord
Glennie (formally principal
Commercial Judge in the Court of
Session and present judge of the
Dubai DIFC courts).
The conference will be held at The
Waldorf Astoria Edinburgh – The
Caledonian, Princes Street, Edinburgh,
EH1 2AB
November 3rd, 2022 9:30 AM
The Waldorf Astoria
Princes Street
Edinburgh, EH1 2AB
United Kingdom

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AUGUST 2022 NEWSLETTER
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