Cases round up

Can last minute settlement prevent the publication of a judgment?

In Prudential Assurance Company v McBains Cooper, the parties reached a settlement following circulation of the draft judgment and then requested the judge not to hand down judgment formally. The judge ruled the judgment should be published as the content of the judgment was of wider interest and application than just to the parties. The parties appealed but the appeal was dismissed. It was held that the purpose of circulating draft judgments was not to provide further material to assist the parties to settle their dispute. It was to introduce an orderly procedure for the delivery of reserved judgments so the parties' lawyers could consider consequential orders and to obviate the need to read the judgment orally in court. It was in the discretion of the judge to decide whether to continue handing down the judgment or to abort it at the parties' request. He was entitled to consider the public interest of continuing the process notwithstanding the parties' wishes.

Does a main contractor have a duty to enquire about the competence of a sub-contractor?

The case of Makepeace v Evans Brothers (Reading) (A firm) (1) Alfred MacAlpine Construction Limited (2) concerned a claim by Mr Makepeace against his employers and the main contractor following injuries he suffered as a result of the collapse of a tower scaffold provided by the main contractor. Whilst the employer was found liable, the claim against the main contractor in negligence and under the Occupiers Liability Act 1957 ("the Act") was dismissed by the trial judge. Mr Makepeace appealed but it was dismissed. It was held that an occupier would not usually be liable to an employee of a contractor employed to carry out work at the occupier's premises if the employee was injured as a result of any unsafe system of work used by the employee and the contractor. It was not generally reasonable to expect an occupier of premises, having engaged a contractor whom he had reasonable grounds to regard as competent, to supervise the contractor's activities in order to ensure that he was discharging his duties to ensure a safe system of work for his employees. Further, the fact that an occupier might have known or have had reason to suspect that the contractor carrying out the work at the premises might have been using an unsafe system of work could not in it itself be enough to impose upon him liability under the Act or in negligence to an employee of the contractor who was thereby injured. This was true even if the effect of using that unsafe system was to render the premises unsafe and thereby cause the injury to the employee.

What constitutes a "fair valuation" of variations under the ICE Conditions of Contract?

The case of Weldon Plant Limited v The Commission for the New Towns concerned an appeal under Section 69 of the Arbitration Act in respect of the following question of law:

"Whether on the facts found by the arbitrator, clause 52(1)(b) of the ICE Conditions permits a fair valuation to made which excludes an allowance for overheads on the basis that the contractor has to establish that it either incurred additional overheads or that it was denied overhead recovery".

On the facts, it was held the answer to this question of law was "no". A fair valuation had to include each of the elements ordinarily to be found in a contract rate or price.

Removal of an arbitrator because of justifiable doubts as to his impartiality

In the case of Save and Prosper Pensions Limited v Homebase Limited & Anr, an application was made to the court under s 24(1)(a) of Arbitration Act 1996. The ground of apparent bias was that the Arbitrator, who had been appointed as such by the President of the RICS, had also been instructed in an arbitration by an associated company of Homebase. It was held by the Court that the Arbitrator should be removed. If the President of the RICS in enquiring about involvement with the parties was not intending to enquire about involvement with companies associated with the parties, he was limiting his enquiry of potential arbitrators in a dangerous way. A relationship with an associated company was likely to give rise to a real possibility of bias although there may be some exceptional cases where this might not be so. Without the agreement of the parties, he was constrained by his relationship with the associated company to treat himself as having an interest in the affairs of Homebase such as to constitute a real danger of bias. Whilst acknowledging the improbability that the Arbitrator personally would allow any relationship to affect his judgment, viewed objectively there was a relationship which would give rise to a reasonable possibility of bias.

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