Simon Tolson’s Top 15 cases of 2021

By way of comparison between 1996 and 2021, we asked Fenwick Elliott’s Senior Partner, Simon Tolson, to highlight the 15 cases he considers to be seminal: 

1. Balfour Beatty Regional Construction Ltd v Van Elle Ltd [2021] EWHC 794 (TCC) At issue in this case was which terms governed liability for works carried out prior to the execution of a contract. Waksman J in the TCC held that work carried out before a formal sub-contract was executed was, nevertheless, subject to the terms of that sub-contract. 

2. Multiplex Construction Europe Ltd v (1) Bathgate Realisations Civil Engineering Ltd (in administration)(2) BRM Construction LLC (3) Argo Global Syndicate 1200 where the TCC considered the scope of a professional design checker’s duty of care. 

3. JSM Construction Ltd v Western Power Distribution (West Midlands) Plc[2020] EWHC 3583 (TCC) the TCC (Pepperall J) considered in a summary judgment application whether the absence of a final account provision rendered a contractual payment mechanism inadequate. This case strongly indicates that the absence of a final account provision is not synonymous with a contractual payment mechanism being deemed “inadequate”. 

4. Optimus Build Ltd v Southall & McManus [2020] EWHC 3389 (TCC) – a cautionary tale on sub-optimal termination. Terminating a contract for repudiatory breach – the TCC highlights again the risks and dangers of wrongful termination. 

5. Naylor and others v Roamquest Ltd and another [2021] EWHC 567 (TCC) considered an application to strike out parts of a cladding claim on the grounds that they were insufficiently particularised. The case, which emphasises the importance of proper pleading, will be of particular interest to parties which are, or may become, involved in such claims. 

6. Downs Road Development LLP v Laxmanbhai Construction (UK) Ltd [2021] EWHC 2441 (TCC), where the TCC considered issues concerning the validity of payment notices, as well as questions of natural justice and the severability of adjudication decisions. HHJ Eyre QC declared that an adjudicator’s decision was not enforceable due to a breach of the rules of natural justice and refused to sever the decision. He also declared that the employer’s payment notice valuing the interim application at £1 was not valid. 

7. Secretariat Consulting PTW Ltd & Ors v A Company [2021] EWCA Civ 6 where the Court of Appeal unanimously upheld the decision of TCC in A v B [2020] EWHC 809, granting an injunction to restrain the UK branch of the claimant group from acting as an expert witness for a third party against an existing client of its Singapore branch in related arbitrations. 

8. Toppan Holdings Ltd and Abbey Health Care (Mill Hill) Ltd v Simply Construct (UK) LLP [2021] EWHC 2110 (TCC) 27 July 2021. All about the right to adjudicate – when is a collateral warranty a construction contract? Martin Bowdery QC (sitting as a deputy High Court Judge) determined that the collateral warranty was not a construction contract within the meaning of the HGCRA and, therefore, that the adjudicator did not have jurisdiction. 

9. Marbank Construction Ltd v G&D Brickwork Contractors Ltd [2021] EWHC 1985 (TCC) 28 June 2021 O’Farrell J. Injunction to restrain adjudication. The Court again re-iterated its reluctance to interfere with, or prevent, the adjudication of construction disputes maintaining the long-standing principle that it was not appropriate for the court to interfere in the adjudication process where the adjudication had not been shown to be unreasonable and oppressive. 

10. Eco World – Ballymore Embassy Gardens Company Ltd v Dobler UK Ltd [2021] EWHC 2207 (TCC), where the TCC considered the construction and enforceability of a liquidated damages clause where the employer had taken partial possession. It was found that an employer was entitled to claim the full amount of liquidated damages payable upon contractor delay, notwithstanding the fact that they had taken partial possession of the contractor’s works. The decision, which may come as something of a surprise to contractors and employers alike, demonstrates that, ultimately, all depends on the wording of an individual contract.

11. Triple Point Technology, Inc v PTT Public Company Ltd [2021] UKSC 29, where the Supreme Court unanimously overturning the Court of Appeal’s earlier decision relating to liquidated damages (“LADs”) where a contract has been terminated. It provided welcome clarity in relation to the drafting and interpretation of LAD clauses in construction, commercial and technology contracts. The judgment also dealt with the relationship between liquidated damages clauses and caps on liability. 

12. Dana UK AXLE Ltd v Freudenberg FST GMBH [2021] EWHC 1413 (TCC), where the TCC considered an application to exclude technical expert evidence midway through a trial! 

13. Mott Macdonald Ltd v Trant Engineering Ltd [2021] EWHC 754, where the TCC considered whether an exclusion clause required exceptional wording in order to exclude liability for fundamental, deliberate and wilful breaches. 

14. Aqua Leisure International Ltd v Benchmark Leisure Ltd [2020] EWHC 3511 where the TCC considered an application for summary judgment to enforce an adjudicator’s decision in circumstances where there was an alleged determination “by agreement”. 

15. Global Switch Estates 1 Ltd v Sudlows Ltd, the Technology and Construction Court [2020] EWHC 3314 where the TCC dismissed an application for summary judgment to enforce an adjudicator’s decision due to material breaches of the rules of natural justice.

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