好色先生TV

We have not seen many big fights over the past year 鈥� has peace and goodwill broken out in the industry? Given the credit crunch, perhaps there鈥檒l be a return to form next year. Meanwhile here鈥檚 a selection of 2007鈥檚 key cases.

Mirant-Asia Pacific vs Arup

When boiler foundations at a power station failed during construction, it meant that everything on top of them had to be dismantled. Arup faced a claim of about 拢25m for the resulting delay. Judge Toulmin went back to basics. The link between Arup鈥檚 breach and the losses claimed had not been proved, so no recovery.

Message? You can鈥檛 hide from cause and effect

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Rhodia vs Huntsman

What does a 鈥渞easonable endeavour鈥� look like 鈥� is it a token effort or should you move heaven and earth? Is 鈥渂est endeavours鈥� the same thing? When Rhodia successfully sued Huntsman for failing to use reasonable endeavours to get a novation agreement signed these terms were scrutinised. For 鈥渂est endeavours鈥� you have to exhaust every option; for a 鈥渞easonable endeavour鈥� you only have to take a reasonable course without sacrificing your own interests.

Message? If you can鈥檛 be on your best behaviour this Christmas, try for reasonable behaviour.

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Multiplex vs Honeywell (No 2)

Honeywell was the 拢13.4m communications subcontractor at Wembley. At adjudication Honeywell successfully argued that its time was 鈥渁t large鈥�. 鈥淣ot so,鈥� said Multiplex and took it to court. Mr Justice Jackson was caught between a rock and a hard place. If he agreed with the adjudicator, he would be giving the green light to contractors to ignore notice requirements in contracts. If he agreed with Multiplex, then subcontractors might find themselves on the receiving end of a claim for liquidated damages with no get out. In the end Jackson overturned the adjudicator.

Message? Will 鈥渢ime at large鈥� arguments ever succeed? Don鈥檛 bank on it.

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John F Hunt Demolition vs ASME Engineering

Hunt鈥檚 subcontractor, ASME, got into a bit of bother on site. Allegedly, one of its welder set light to the facade. Hunt settled with Kier for the losses, but also paid Whitehall, the ultimate developer. Hunt tried to claw back the sum from ASME, which replied, 鈥渨ait a minute you didn鈥檛 have to pay Whitehall and nor did Kier鈥�. Everyone agreed. Judge Coulson did not consider this made the settlement unreasonable per se; that was a matter of fact and so reserved for trial.

Message? Recoverable losses may include irrecoverable losses if in the circumstances the settlement sum was reasonable.

Melville Dundas vs Wimpey

In the first House of Lords decision on the Construction Act the fight between the act and the contract came to town. Wimpey owed Melville Dundas (MD) 拢396,630 but, without a withholding notice, did not pay. MD went bust. Wimpey terminated its employment upon which the contract provided no further sums were due for payment until the works were complete. MD was having none of it and took the matter to court. The Lords upheld the original (Scottish) decision.

Message? Some view this as victory for contractual freedom. Others (that is, insolvency practitioners) are less enamoured of it. It is high up on the agenda for changes to the act.

Sydenhams v CHG

How often does the client do a deal with the specialist subcontractor agreeing practically everything and then turn round to the main contractor saying 鈥渙ver to you鈥�?

Here the developer, CHG, signed off orders for Sydenhams, a joinery contractor. CHG had intended that Rybarn, its main contractor, would take on Sydenhams. Rybarn did make payments to Sydenhams but not promptly. Sydenhams, having walked off site, then had their direct payment arrangement with CHG reinstated. When Rybarn went into administration CHG said it couldn鈥檛 pay Sydenhams, direct payment to subcontractors being forbidden when the middle man goes bust.

On ordering CHG to pay Sydenhams, the court found they had been in a direct contract.

Message? For owners who fancy doing the deal but not having the liability 鈥� look out!