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The Week That Was – 6 August 2021

06 August 2021. Published by Ben Goodier, Partner and Sarah O'Callaghan, Senior Associate

(1) Toppan Holdings Limited (2) Abbey Healthcare (Mill Hill Limited) v Simply Construct (UK) LLP

Pursuant to a building contract novated to Toppan, Simply was engaged to construct a care home and subsequently provided a collateral warranty in favour or the operator, Abbey.  Defects were found at the care home and Abbey obtained an adjudicator's decision against Simply for damages for loss of trading profit.

It was held in Parkwood v Laing O'Rouke that a collateral warranty could be a construction contract.  In this case, the collateral warranty was executed 4 years after practical completion and 8 months after another contractor had carried out remedial works.  The court held that it was a warranty as to a previous state of affairs, rather than an agreement to carry out construction works.  Accordingly, the collateral warranty was not a construction contract under section 104 of Housing Grants, Construction and Regeneration Act 1996 and Abbey had no right to adjudicate.

To read the judgment, please click here.

Proposed amendments to the Disclosure Pilot Scheme

The Disclosure Working Group has provided advance notice of changes approved in principle by the Civil Procedure Rule Committee which, it hopes, will receive final approval in September 2021.  Until this occurs, the proposed changes have no formal status.
Key changes include:

  • Introduced in Appendices 5 to 7 is a simplified regime for "Less Complex Claims."  A "Less Complex Claim" is a claim that may not benefit from the existing regime of Extended Disclosure.  A claim valued at less than £500,000 should be treated as a Less Complex Claim unless other specified factors indicate to the contrary.  It should be noted that this figure includes non-financial relief. 
  • A bespoke approach permitted for multi-party claims. 
  • Lists of issues for Disclosure and Extended Disclosure Models C and D: these revised provisions are designed to prevent greater expense being incurred by excluding narrative documents. 
  • Amendments to the Disclosure Guidance and Disclosure Certificate.

Further details of the proposed changes are outlined here.

Naylor v Roamquest Ltd [2021] 7 WLUK 448

The court has granted permission for the inspection of replacement cladding panels on six tower blocks, following a two-year programme of remedial works carried out by Roamquest following the Grenfell Tower fire.

The Claimants are the leasehold owners of flats in six tower blocks and applied for permission to conduct instructive inspections on the facades.  The first defendant is the developer and freehold owner of the development and the second defendant carried out the design and construction between 2009 and 2014.

It was ruled that the court had the power to order the inspection of Buildings under CPR r.25.1(c)(ii).  All investigations had to be reasonable and proportionate in all the circumstances.  The inspection was limited to 12 panels in this case and has to be carried out by the second defendant as it is best placed to determine a safe and convenient approach to these inspections.

To read the judgment, please click here.

Stonehenge World Heritage Site Limited v Secretary of State for Transport

The court has quashed the Transport Secretary's decision to grant planning permission for the construction of a new 13km route for the A303, including a 3.3km tunnel through the Stonehenge, Avebury and Associated Sites World Heritage Sites.

The court held that the Transport Secretary was obliged to take into account the impact on the significance of all designated heritage assets.  However, he had failed to take into account the appraisal in the Environmental Statement or the Heritage Impact Assessment of a number of heritage assets, which amounted to a material error of law.

Further, the merits of alternative tunnel options were an obviously material consideration which had to be considered in accordance with the World Heritage Convention and common law.  The court held that the decision not to assess them was irrational.

To read the judgment, please click here.

Thank you to Paul Smylie and Fiona Engledow for contributing to this week's edition.

If you have any queries or comments, please contact Ben Goodier or Sarah O'Callaghan.