Construction | April Issue

Welcome back to the Legal Lowdown: Construction Issue. This bi-monthly newsletter provides you with summaries of the latest legal cases in the construction industry so that you have the information you need to stay updated.

Our construction newsletter has been written and reviewed by one of our construction legal experts,?Dr Julian Critchlow?who has over 38 years' of expertise in the industry.

Allianz Insurance plc v The University of Exeter [2023] EWHC 630 (TCC)

Insurance – damage by act of war – proximate cause of loss

A WWII bomb was found at the University of Exeter.?It had to be detonated in situ, thereby causing damage to University buildings.?The University claimed on its policy with Allianz Insurance plc which rejected the claim (for physical damage and business interruption) citing an exclusion clause of claims occasioned by war.?The University argued that:

• the proximate cause of the damage was the controlled exploding of the bomb;
• the clause did not cover historic wars.

The Court found for Allianz.?The proximate cause was the dropping of the bomb because the decision to explode it in situ was not unreasonable, and to trigger the exemption it was not necessary for hostilities to be current.?

LJR Interiors Ltd v Cooper Construction Ltd?[2023] EWHC 339 (TCC)

Adjudication – limitation defence – late application for payment

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LJR completed construction works for Cooper in October 2014.?In September 2022, LJR served on Cooper an Application for Payment.?Cooper issued neither a payment notice nor a pay less notice.?LJR adjudicated and the Adjudicator found in its favour.?Cooper succeeded in defending LJR’s application in Court to enforce the Decision on the grounds that whilst LJR was entitled to adjudicate the dispute at any time, the claim had become statute barred six years from the accrual of the entitlement, if any, which accrual was in November 2014.

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Cooper was entitled to bring, and succeed in, Part 8 proceedings to be heard at the same time as the enforcement application for a declaration that the Adjudicator’s Decision was unconscionable.

J & B Hopkins Limited v A&V Building Solution Limited

Adjudication – reverse decision – enforcement – jurisdiction – natural justice

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A & V, as Subcontractor, adjudicated against J & B, as Contractor, for about ￡430,000.?However, the Adjudicator found for J & B (as Respondent) ordering A & V to pay it ￡83,000; and J & B proceeded to enforcement.?The Judge decided that the Adjudicator’s Decision was enforceable.?Notable points are:

• it was irrelevant that J & B had not responded to A & V’s Protocol letter until late in the day – the Construction and Engineering Protocol does not apply to adjudications;
• the Adjudicator was competent to decide the extent to which he was bound by an earlier Decision: that issue would only have gone to jurisdiction if he had decided the same, or substantially the same, dispute as before;
• errors in the Decision and the limited time spent on it by the Adjudicator were not indicative of bias.

A & V was represented as “litigant in person”, indicating the importance of taking competent legal advice.

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