Our newsletter begins with an update on the legislative developments in the Building Safety Act. The next key date in the Building Safety calendar is 6 April 2024, when Building Control Approvers need to be registered with the Building Safety Regulator. Through pressure from the Local Authority Building Control (LABC) this has been extended.
We also provide our report on Triathlon Homes LLP v Get Living Plc & Ors and the Tribunal's first decision in an application for a Remediation Contribution Order.
Adjudication enforcement always features prominently in our newsletter and this quarter is no different. The Court remains reluctant to interfere with an adjudicator's decision and applications to resist enforcement have found little success. In AlterEgo the court demonstrated that it will be reluctant to find that a Notice of Adjudication is defective. In Van Elle the Court captained a voyage through a "tangle of Acts, OS maps, supporting explanations, Conventions and Orders" to demonstrate that the Construction Act (and therefore the right to adjudicate) applied. In Bellway the Court considered amendments to adjudication provisions in the parties contract and found that the adjudicator had been validly appointed.
We also consider the decision in Melton Town Football Club and the relationship between an application for security for costs and adjudication enforcement proceedings.
The dangers of parties neglecting to update letters of intent are considered in CLS Civil Engineering.
Finally, we look at Yesss (A) Electrical and the Court of Appeal's guidance on applications for relief from sanctions and the circumstances in which these will be required.
1. The latest developments under the Building Safety Act 2022 ("BSA")
The following seeks to provide a round-up of the guidance and legislation issued under the BSA since our last update in December 2023.
2. Triathlon Homes LLP V Stratford Village Development Partnership (1) Get Living Plc (2) East Village Management Limited (3)
In what is a test case, laying down some useful precedent, the First-Tier Tribunal (FTT) has ruled that a property company and its subsidiary (the original developer) should contribute approximately £16 million to the cost of remediation work in respect of fire safety defects found in five residential buildings (the Blocks).
3. Jurisdictional challenge to Adjudicator's Decision
In the recent case of Iluminesia Ltd (t/a AlterEgo Facades) v RFL Facades Ltd [2023] EWHC 3122, the Technology and Construction Court ("TCC") rejected attempts to resist enforcement of the Adjudicator's Decision.
4. Salvaging the Extent of the Realm - A review of Van Elle Ltd v Keynvor Morlift Ltd [2023] EWHC 3137 (TCC)
This Technology and Construction Court case relates to a summary judgment application to enforce an adjudicator's decision. It touches on a number of points relating to jurisdictional grounds and breaches of natural justice as a defence to the summary judgment.
5. Adjudicator's jurisdictional challenge rejected and decision enforced
It is always important to ensure the correct building blocks of an adjudication are in place or the parties proceed at risk of challenge. In Bellway Homes Ltd v Surgo Construction Ltd [2024] EWHC 269 this included the need to not overlook correctly appointing your adjudicator.
6. Applications for security for costs must be heard in advance of enforcement proceedings
Melton Town Football Club ("MTFC") appointed the Hunts Contractors ("Hunts") to design and construct a new football pitch with a synthetic surface that would enable the team to play in wet weather.
7. CLS Civil Engineering Ltd v WJG Evans & Sons – relying on a liability cap
The case of CLS Civil Engineering Ltd v WJG Evans and Sons [2024] EWHC 194, the Court considered whether an employer is entitled to rely on an overall liability cap in a Letter of Intent.
8. Clarification on Relief from Sanction: An analysis of Yesss (A) Electrical Ltd v Martin Warren [2024] EWCA Civ 14
This case considered the application of relief from sanctions (CPR rules 3.8 and 3.9) in respect of permission to call a new expert after directions had been given at the costs and case management hearing ("CCMC").
9. I can't get no Adjudication
As demonstrated in the recent case of Lancashire Schools SPC Phase 2 Limited v (i) Lendlease Construction (Europe) Limited and Others [2024] EWHC 37 (TCC) the Court isn't always willing to apply the brakes. Indeed, the brakes might prove mechanically unsound.
10. New Caselaw on the Insurance Act 2015 - Scotbeef Ltd v D&S Storage Ltd and Lonham Group Ltd
There have not been many decisions on the operation of the Insurance Act 2015. This TCC judgment on a preliminary issue is of interest as it sets out how the Court will resolve coverage issues arising in connection with conditions precedent.
