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Battery
Collins v Wilcock [1984] 1 WLR 1172
Two police officers on duty in a police car observed two women in the street who appeared to be soliciting for the purpose of prostitution. One of the women was known to the police as a prostitute but the other, the appellant, was not a known prostitute. When the police officers requested the appellant to get into the car for questioning she refused to do so and instead walked away from the car. One of the officers, a policewoman, got out of the car and followed the appellant in order to question her regarding her identity and conduct and to caution her, if she was suspected of being a prostitute, in accordance with the approved police procedure for administering cautions for suspicious behaviour before charging a woman with being a prostitute, contrary to s 1 of the Street Offences Act 1959. The appellant refused to speak to the policewoman and walked away, whereupon the policewoman took hold of the appellant's arm to detain her. The appellant then swore at the policewoman and scratched the officer's arm with her fingernails. The appellant was convicted of assaulting a police officer in the execution of her duty, contrary to s 51(1) of the Police Act 1964. She appealed against the conviction, contending that when the assault occurred the officer was not exercising her power of arrest and was acting beyond the scope of her duty in detaining the appellant by taking hold of her arm. The police contended that the officer was acting in the execution of her duty when the assault occurred because the officer had good cause to detain the appellant for the purpose of questioning her to see whether a caution for suspicious behaviour should be administered.

Held -

(1) Except when lawfully exercising his power of arrest or some other statutory power a police officer had no greater rights than an ordinary citizen to restrain another. Accordingly, whether a police officer's conduct was lawful when detaining a person, to question him in circumstances where the officer was not exercising his power of arrest or other statutory power depended on whether the physical contact the officer used to detain the person was no more than generally acceptable physical contact between two citizens for the purpose of one of them engaging the attention of the other and as such was lawful physical contact as between two ordinary citizens. If the conduct used by the officer went beyond such generally acceptable conduct eg if the officer gripped a person's arm or shoulder rather than merely laying a hand on his sleeve or tapping his shoulder, the officer's conduct would constitute the infliction of unlawful force and thus constitute a battery (see p 378 j and p 379 a to e, post); dictum of Parke B in Rawlings v Till (1837) 3 M & W at 29, Ludlow v Burgess (1971) 75 Cr App R 227 and Bentley v Brudzinski (1982) 75 Cr App R 217 applied; Wiffin v Kincard (1807) 2 Bos & PNR 471.

(2) The 1959 Act did not confer power on a police officer to stop and detain a woman who was a prostitute for the purpose of cautioning her. Furthermore, the fact that the reason an officer detained a woman was to caution her regarding her suspicious behaviour did not render the officer's conduct lawful if in detaining her he used a degree of physical contact that went beyond lawful physical contact as between two ordinary citizens (see p 380 b to f, post).

(3) Since the policewoman had not been exercising her power of arrest when she detained the appellant, and since in taking hold of the appellant's arm to detain her the policewoman's conduct went beyond acceptable lawful physical contact between two citizens, it followed that the officer's act constituted a battery on the appellant and that she had not been acting in the execution of her duty when the assault occurred. Accordingly the appeal would be allowed and the conviction quashed (see p 380 f g, post).
Scott v Shepherd (1773) 2 B1 R892
Trespass and assault will lie for originally throwing a squib, which after having been thrown about in self-defence by other persons, at last put out the plaintiff's eye.

FALSE IMPRISONMENT
Bird v Jones (1845) 7 QB 742
Plaintiff, attempting to pass in a particular direction, was obstructed by the defendant, who prevented him from going in any particular direction but one, not being that in which he had endeavoured to pass. Held, no imprisonment. And this, whether the plaintiff had or had not a right to pass in the first mentioned direction. Per Patteson, Coleridge, and Williams Js. Dissentiente Lord Denman C.J.
Robinson v Balmain New Ferry [1910] AC 295
In an action for damages for assault and false imprisonment it appeared that the plaintiff had contracted with the defendants to enter their wharf and stay there till the boat should start and then be taken by the boat to the other side. No breach of the defendants' undertaking was alleged, but the plaintiff after entry changed his mind and desired to effect an exit from their wharf without payment of the prescribed toll for exit, and was for a time forcibly prevented:-

Held, that he ought to have been nonsuited. The toll imposed was reasonable and the defendants were entitled to resist a forcible evasion of it.
Meering v Graham-White Aviation Co Ltd (1920) 122 LT 44
A private prosecutor not having the privilege that a police constable possesses of imprisoning a person on mere suspicion that a felony has been committed, false imprisonment results, if the person is detained by the private prosecutor. Arrest, however by a police constable which follows the placing of the case in his hands to do his duty is not an arrest by a private prosecutor, but is an arrest by the police constable.

The fact that a person is not actually aware that he is being imprisoned does not amount to evidence that he is not imprisoned, it being possible for a person to be imprisoned in law without his being conscious of the fact and appreciating the position which he is placed, laying hands upon the person of the party imprisoned not being essential.

The definition of "Imprisonment" in "Termes de la Ley" is an adequate statement of what is meant by that expression. Bird v Jones 7 QB 742 and Warner v Burford 4 CB (NS) 204 approved.

Absence of reasonable and probable cause for instituting a prosecution against a person affords evidence from which it may be inferred that there was a want of honest belief on the part of the prosecutor in the guilt of the person accused. But absence of reasonable and probable cause alone will not suffice. There must be evidence of some further indirect motive.

The depositions of witnesses taken in pursuance of s. 17 of the Indictable Offences Act, 1848, in the form set forth in the Schedule to that Act should appear in chronological order, a record of the depositions being kept day by day with a fresh caption at the beginning of each day's proceedings showing what witnesses have been examined on that day, and what part of their evidence has been given on that day.

Observations of Duke L.J. as to the function of a judge at nisi prius.

Observations of Atkin L.J. concerning the burden cast upon judges in trying civil actions in the High Court of Justice in making the only official record of the whole of the evidence which is adduced before them by taking a note thereof in longhand.

Order of Bray J. varied.
Heard v Weardale Steel, Coal & Coke Co [1915] AC 67
A minor descended a coal mine at 9.30 am for the purpose of working therein for his employers, the owners of the colliery. In the ordinary course he would be entitled to be raised to the surface at the conclusion of his shift, which expired at 4 pm. On arriving at the bottom of the mine the miner was ordered to do certain work which he wrongfully refused to do, and at 11 am he requested to be taken to the surface in a lift, which was the only means of egress from the mine. His employers refused to permit him to use the lift until 1.30 pm although it had been available for the carriage of men to the surface from 1.10 pm, and in consequence he was detained in the mine against his will for twenty minutes. In respect of this detention the miner sued his employers for damages for false imprisonment:-

Held, on the principle of volenti non fit injuria, that the action could not be maintained. Decision of the Court of Appeal [1913] 3 K. B. 771 affirmed.

THE RULE IN WILKINSON v DOWNTON
Wilkinson v Downton [1897] 2 QB 57
The defendant, by way of a practical joke, falsely represented to the plaintiff, a married woman, that her husband had met with a serious accident whereby both his legs were broken. The defendant made the statement with intent that it should be believed to be true. The plaintiff believed it to be true, and in consequence suffered a violent nervous shock which rendered her ill:-

Held, that these facts constituted a good cause of action.

Victorian Railways Commissioners v. Coultas, (1888) 13 App. Cas. 222, and Allsop v. Allsop, (1860) 5 H. & N. 534, considered.
Janvier v Sweeney [1919] 2 KB 316
False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable.

The defendants were two private detectives. One of them was designing to inspect certain letters, to which he believed the plaintiff, a maid servant, had means of access. He instructed the other defendant, who was his assistant, to induce the plaintiff to show him the letters, telling him that the plaintiff would be remunerated for this service. The assistant endeavoured to persuade the plaintiff by false statements and threats, as the result of which the plaintiff fell ill from a nervous shock.

In an action by the plaintiff against the defendants for damages:-

Held, that the assistant was acting within the scope of his employment and that both the defendants were liable.

Wilkinson v. Downton [1897] 2 Q. B. 57 approved.

DEFENCES
CONSENT R v Billinghurst [1978] Crim LR 553
Newport Crown Court: Judge John Rutter: June 12 and 13, 1978.

During a Rugby Football match and in an off-the-ball incident B punched G, the opposing scrum-half, in the face fracturing his jaw in two places. B was charged with inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861. The only issue in the case was consent. Evidence was given by G that on previous occasions he had been punched and had himself punched opponents on the Rugby field, and by a defence witness Mervyn Davies, a former Welsh International Rugby player, that in the modem game of rugby punching is the rule rather than the exception.

It was argued by the defence that in the modern game of rugby players consented to the risk of some injury and that the prosecution would have to prove that the blow struck by B was one which was outside the normal expectation of a player so that he could not be said to have consented to it by participating in the game.

The prosecution argued that public policy imposes limits on violence to which a rugby player can consent and that whereas he is deemed to consent to vigorous and even over-vigorous physical contact on the ball, he is not deemed to consent to any deliberate physical contact off the ball.

The following article and authorities were referred to: "Consent and Public Policy" by Glanville Williams [1962] Crim.L.R. 74 at p. 80; Coney, 8 Q.B.D. 534; Bradshaw, 14 Cox C.C. 83; Moore (1898) 14 T.L.R. 229; Maki (1970) 14 D.L.R. 164; Green (1970) 16 D.L.R. 127.

The judge directed the jury that Rugby was a game of physical contact necessarily involving the use of force and that players are deemed to consent to force "of a kind which could reasonably be expected to happen during a game." He went on to direct them that a rugby player has no unlimited licence to use force and that "there must obviously be cases which cross the line of that to which a player is deemed to consent." A distinction which the jury might regard as decisive was that between force used in the course of play and force used outside the course of play. The judge told the jury that by their verdict they could set a standard for the future.

The jury, by a majority verdict of 11 to 1, convicted B, who was treated as a man of previous good character and sentenced to nine months' imprisonment suspended for two years.
SELF DEFENCE R v Williams (Gladstone) (1984) Cr App R 276
M saw a youth attempting to rob a woman in the street. He gave chase, knocked the youth to the ground and attempted to immobilise him. The appellant, who had not witnessed the attempted robbery, then came on the scene. M told the appellant that he was a police officer, which was untrue, and that he was arresting the youth. When M failed to produce a warrant card a struggle ensued in which the appellant punched M in the face. The appellant was charged with assault causing actual bodily harm. At his trial his defence was that he had honestly believed that the youth was being unlawfully assaulted by M and that it was irrelevant whether his mistake was reasonable or unreasonable. The judge directed the jury that the appellant had to have an honest belief based on reasonable grounds that M was acting unlawfully. The appellant was convicted. He appealed on the ground that the judge had misdirected the jury.

Held - if a defendant was labouring under a mistake of fact as to the circumstances when he committed an alleged offence he was to be judged according to his mistaken view of the facts regardless of whether his mistake was reasonable or unreasonable. The reasonableness or otherwise of the defendant's belief was only material to the question of whether the belief was in fact held by the defendant at all. it followed that there had been a material misdirection. The appeal would therefore be allowed and the conviction quashed (see p 413 g, p 414 c to e and p 415 d e g j, post).
Beckford v R [1988] AC 130
The appellant was a police officer who was a member of an armed posse which was sent to investigate a report that an armed man was terrorising and menacing his family at their house. When the police arrived at the house a man ran out of the back of the house pursued by police officers, including the appellant. There was a conflict of evidence about what then occurred. The Crown alleged that the man was unarmed and was shot by the appellant and another police officer after he had been discovered in hiding and had surrendered, while the appellant claimed that the man had a firearm, had fired at the police and had been killed when they returned the fire. At the trial of the appellant for murder the judge directed the jury that if the appellant had a reasonable belief that his life was in danger or that he was in danger of serious bodily injury he was entitled to be acquitted on the grounds of self-defence. He was convicted. He appealed to the Court of Appeal of Jamaica, contending that he was entitled to rely on the defence of self-defence if he had had an honest belief that he had been in danger. The Court of Appeal held that the appellant's belief that the circumstances required self-defence had to be reasonably and not merely honestly held, and dismissed his appeal. The appellant appealed to the Privy Council.

Held - if a plea of self-defence was raised when the defendant had acted under a mistake as to the facts, he was to be judged according to his mistaken belief of the facts regardless of whether, viewed objectively, his mistake was reasonable. Accordingly, the test for self-defence was that a person could use such force in the defence of himself or another was reasonable in the circumstances as he honestly believed them to be. It followed that the trial judge had misdirected the jury. The appeal would therefore be allowed and the conviction quashed (see p 426 g, p 431 e f and p 432 e f, post).

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Trespass To The Person. In an action for damages for assault and false imprisonment it appeared that the plaintiff had contracted with the defendants to enter their wharf and stay there till the boat should start and then be taken by the boat to the other side.

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[2011] Harrison & Others vs Shepherd Homes Ltd

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[2011] Harrison & Others vs Shepherd Homes Ltd

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The case of Harrison & Others v Shepherd Homes Ltd (2011) EWHC 1811 ( TCC) relates to the correct approach to the measurement of damages for defective premises.

The Claimants were owners of houses on an estate in Hartlepool which were built by Shepherd Homes Ltd. The houses were built over a period of years up to 2004. The site was a former landfill site and so the properties were constructed on piled foundations. These piled foundations had been negligently designed and constructed with the result that the properties showed varying degrees of damage. Some of the properties suffered only minimal damage but had, nonetheless, proved virtually impossible to sell or re- mortgage.

A trial of 10 sample cases took place in 2010. Those claimants who were original purchasers of their properties relied upon their original contracts of sale, whilst all claimants relied on the provisions of the Defective Premises Act 1972 and the NHBC Buildmark guarantee. Shepherd Homes Ltd denied liability arguing that it owed the claimants no obligations under the original contracts of sale, that breach of duty under the Defective Premises Act required unfitness for habitation, which did not apply here, and that the required written notice under the NHBC Buildmark scheme had not been provided.

Giving judgment, Ramsey J held that the foundations were defective and that Shepherd Homes Ltd was responsible for the defects as a consequence of its breach of both express and implied terms of the contracts of sale. On a proper construction of the sale contracts, Shepherd Homes was obliged to carry out the design with proper skill and attention and ensure that the houses were fit for habitation.

Alternatively, such a term would be implied. Furthermore, if the sale contracts were to be interpreted as argued by Shepherd Homes then they would be unfair within the meaning of the Unfair Terms in Consumer Contracts Regulations 1999 and the Unfair Contract Terms Act 1977.

As to the provisions of the Defective Premises Act, it was held that there existed a single duty to ensure that the houses were fit for habitation when completed (Alexander v Mercouris (1979) 1 WLR 1270). The defective piles meant that the houses were unfit for habitation notwithstanding the minimal physical damage.

And with regard to the NHBC Buildmark scheme the problems of the estate generally meant that Shepherd Homes had had constructive notice of these problems and they therefore could not rely upon an absence of notice to avoid liability under this scheme.

There will generally be an award of the cost of reinstatement provided that reinstatement is reasonable.

Reinstatement will be unreasonable if it is out of all proportion to the benefit to be obtained.

Reasonableness has to be determined on a case by case basis.

It is not necessary for recovery of the cost of reinstatement to show that the claimant will reinstate the property, but the intention to reinstate may be relevant to the question of reasonableness.

If reinstatement is unreasonable, the measure of damages will generally be diminution in value.

Where reinstatement is unreasonable and there is no diminution in value then modest damages may be awarded for loss of amenity.

The following considerations would be applied:

There is a general rule, that a claimant cannot recover damages for injured feelings arising from a breach of contract. There is an exception where the object of the contract is to afford pleasure, relaxation or peace of mind.

Damages may be recovered for physical inconvenience or discomfort and mental suffering associated therewith.

This judgment will be viewed as unhelpful to construction professionals and their insurers as it raises the distinct prospect that the value of defective premises claims will rise in the future with a consequent increase in costs for insurers and premiums for professional indemnity insurance cover.

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Defective premises - liability and measure of damages

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Defective premises - liability and measure of damages - Designing Buildings Wiki - Share your construction industry knowledge. The case of Harrison & Others v Shepherd Homes Ltd (2011) EWHC 1811 (TCC) relates to the correct approach to the measurement of damages for defective premises.

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[2011] R v Cotswold Geotechnical Holdings Ltd 

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[2011] R v Cotswold Geotechnical Holdings Ltd 

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[2014] 199 Knightsbridge Development Ltd v WSP UK Ltd

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[2014] 199 Knightsbridge Development Ltd v WSP UK Ltd

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WSP installed a cold water system but a flood and a surge of water that damaged the property. The judge was determining whether there was negligence and comparing the work to professional skill. They used two previous cases for the argument and tried to prove whether WSP could have 'foreseen' the problem

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199 Knightsbridge Development Ltd v WSP UK Ltd [2014] EWHC 43 ( TCC)

WSP found itself in cold water in this case of professional negligence but fortunately the court found that its negligence did not cause Knightsbridge's loss.

In order to bring a successful claim for professional negligence the claimant must prove the defendant owed it a tortious or contractual duty of care, that the defendant breached its duty and that the breach caused the claimant's loss.

Knightsbridge ("the claimants") were developers of a residential block of flats in London and the defendant ("WSP") was the mechanical and electrical engineer of the development. In 2005, serious flooding occurred due to damage to the cold water system as a result of a partial drain down of water causing a catastrophic pressure surge which ruptured pipe joints and pipework. The claimants sued WSP for the loss alleging negligence in the design of the cold water system and for not addressing the possibility of damage caused by a loss of water.

The judge, Mr Justice Edwards-Stuart, found that WSP owed the claimants a contractual duty of care in the design of the cold water system: this was set out in the following clause of WSP's contract requiring it to "exercise a reasonable level of care and skill as [was to be] expected of a qualified Consultant in the same profession, experienced and competent in carrying out work of similar size, scope and complexity to the Project". This duty equates to the standard of care and skill the law ordinarily imposes on professionals.

He also examined the usual authorities in professional negligence cases including:

Bolam v Friern Hospital Management Committee, which found that a professional is not negligent if "he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art....".

Nye Saunders v Alan E Bristow, which held that in determining whether the duty of care had been discharged, the courts would assess whether there was evidence at the relevant time that a responsible body of architects would consider that the manner in which the defendant discharged his duty was appropriate.

However the court drew a distinction between the existence of a responsible body of professional opinion and industry practice prevailing at the time; WSP's defence relied unsuccessfully on the latter. The solution to the problem was the installation of surge arrester valves to the cold water risers but surprisingly as it now seems, M&E engineers at the time did not address such issues and most recognised M&E practices did not advise the installation of such valves to prevent flooding and damage caused by catastrophic pressure surges occasioned by a loss of water.

Mr Justice Edwards-Stuart found that despite the absence of a responsible body of professional opinion at the time, the prevailing industry practice could not excuse WSP of its professional duty of care towards the claimant to design the cold water system so as to avert such damage as it should have foreseen the problem and in failing to do so was negligent. The issue then was that if WSP had foreseen the problem, could the damage have been prevented?

On the evidence the judge was clear that even after the flooding, the claimant had still not installed surge arresters despite being advised to do so. The court determined that had WSP addressed this issue and advised the claimant to fit anti-surge valves, the claimant was unlikely to have done so in time to prevent the damage occurring.

The upshot of the case is that just because everyone else is following the flock, that does not make their approach correct or less negligent. A professional person cannot divest themselves of their duty of care by simply relying on the (unsatisfactory) prevailing practice in the industry but still has to cast their mind to potential issues that might arise as part of the design and advise their client accordingly. Whether clients then choose to follow that advice is a matter for them. It is also a reminder to claimants of the evidential burden to discharge in professional negligence cases.

This article was created by -- Najma Dunnett as part of an ongoing series of legal articles written for Designing Buildings Wiki.

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199 Knightsbridge Development Ltd v WSP UK Ltd

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199 Knightsbridge Development Ltd v WSP UK Ltd [2014] EWHC 43 ( TCC) WSP found itself in cold water in this case of professional negligence but fortunately the court found that its negligence did not cause Knightsbridge's loss.

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[2017] North Midland Building Ltd v Cyden Homes Ltd

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[2017] North Midland Building Ltd v Cyden Homes Ltd

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Here, the claimant, the contractor and the defendant, the employer, had agreed certain bespoke amendments to the JCT Design and Build Contract 2005, one of which concerned the way in which extensions of time would be dealt with in certain circumstances. Clause 2.25.1.3(b) as amended read as follows:

"2.25.

1. any of the events which are stated to be a cause of delay is a Relevant Event; and

2. completion of the Works or of any Section has been or is likely to be delayed thereby beyond the relevant Completion Date,

3. and provided that

(a) the Contractor has made reasonable and proper efforts to mitigate such delay; and

(b) any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account

then, save where these Conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable."

Sub-clause (3) was the part added by the parties to the standard clause. The clause as amended added into the extension of time machinery the proviso that, in assessing an extension of time, "any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account".

The works were delayed and North Midland applied for an extension of time for a variety of reasons. As part of their reply, Cyden maintained that if there were two delaying events occurring at the same time and causing concurrent delay to completion of the works, with one event which otherwise entitled the claimant to an extension of time, and the other being "another delay for which the Contractor is responsible", then the contractor would not be entitled to an extension of time in respect of those two delaying events. North Midland disagreed.

North Midland placed reliance upon the doctrine of prevention. Mr Justice Fraser explained that:

"Essentially the prevention principle is something that arises where something occurs, for which it is said the employer is responsible, that prevents the contractor from complying with his obligations, usually the obligation to complete the works by the completion date."

The Judge further noted that in Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] BLR 195, Mr Justice Jackson (as he then was) had considered the relationship between the prevention principle and time at large, setting out that:

(i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date.

(ii) Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events.

(iii) Insofar as the extension of time clause is ambiguous, it should be construed in favour of the contractor.

North Midland said that as a consequence of the first two propositions time was at large. Mr Justice Fraser explained that:

"the concept of 'time at large' does not mean that the contractor has an indefinite time to complete the works. If the completion date in the contract, and the mechanism for having that extended by means of awarding so many weeks to an originally agreed completion date, are inoperable or for some other reason no longer applicable, in general terms the contractor's obligation becomes one to complete the works within a reasonable time. That is what the shorthand expression 'time at large' is usually understood to mean."

North Midland said that dealing with concurrent delay in the way that the employer had dealt with it in response to the application for an extension of time was unfair and not in accordance with the terms of the contract. An extension of time ought to be granted without taking account of concurrent delays for which the claimant is responsible, and disallowing those latter periods. However, the Judge made it clear that he did not consider that the prevention principle arose at all.

In fact, Mr Justice Fraser was "crystal clear" that the parties had agreed that if the contractor were responsible for a delaying event which caused delay at the same time as, or during, that caused by a Relevant Event, then the delay caused by the Relevant Event "shall not be taken into account" when assessing the extension of time. That did not raise any issues of construction whatsoever. The parties were free to agree whatever they liked in terms of how the risk of concurrent delay should be allocated. There was no rule of law that prevented the parties from agreeing that concurrent delay be dealt with in any particular way.

At the end of his judgment, Mr Justice Fraser referred to a discussion about whether, where concurrent delay exists, the prevention principle is engaged at all, referring for example to the words of Mr Justice Coulson (as he then was) in the case of Jerram Falkus Construction Ltd v Fenice Investments Inc (No.4) [2011] EWHC 1935 (TCC):

"Accordingly, I conclude that, for the prevention principle to apply, the contractor must be able to demonstrate that the employer's acts or omissions have prevented the contractor from achieving an earlier completion date and that, if that earlier completion date would not have been achieved anyway, because of concurrent delays caused by the contractor's own default, the prevention principle will not apply."

It was suggested that these words should not be followed. Mr Justice Fraser disagreed and advised parties where disputes occurred about this point to proceed on the basis that the prevention principle is not engaged where there is concurrent delay.

Decision upheld on appeal. See Issue 218.
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North Midland Building Ltd v Cyden Homes Ltd

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Here, the claimant, the contractor and the defendant, the employer, had agreed certain bespoke amendments to the JCT Design and Build Contract 2005, one of which concerned the way in which extensions of time would be dealt with in certain circumstances. Clause 2.25.1.3(b) as amended read as follows: "2.25. 1.

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[2018] North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744

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[2018] North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA Civ 1744

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Here, the claimant, the contractor and the defendant, the employer, had agreed certain bespoke amendments to the JCT Design and Build Contract 2005, one of which concerned the way in which extensions of time would be dealt with in certain circumstances. Clause 2.25.1.3(b) as amended read as follows:

"2.25.

1. any of the events which are stated to be a cause of delay is a Relevant Event; and

2. completion of the Works or of any Section has been or is likely to be delayed thereby beyond the relevant Completion Date,

3. and provided that

(a) the Contractor has made reasonable and proper efforts to mitigate such delay; and

(b) any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account

then, save where these Conditions expressly provide otherwise, the Employer shall give an extension of time by fixing such later date as the Completion Date for the Works or Section as he then estimates to be fair and reasonable."

Sub-clause (3) was the part added by the parties to the standard clause. The clause as amended added into the extension of time machinery the proviso that, in assessing an extension of time, "any delay caused by a Relevant Event which is concurrent with another delay for which the Contractor is responsible shall not be taken into account".

The works were delayed and North Midland applied for an extension of time for a variety of reasons. As part of their reply, Cyden maintained that if there were two delaying events occurring at the same time and causing concurrent delay to completion of the works, with one event which otherwise entitled the claimant to an extension of time, and the other being "another delay for which the Contractor is responsible", then the contractor would not be entitled to an extension of time in respect of those two delaying events. North Midland disagreed.

North Midland placed reliance upon the doctrine of prevention. Mr Justice Fraser explained that:

"Essentially the prevention principle is something that arises where something occurs, for which it is said the employer is responsible, that prevents the contractor from complying with his obligations, usually the obligation to complete the works by the completion date."

The Judge further noted that in Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] BLR 195, Mr Justice Jackson (as he then was) had considered the relationship between the prevention principle and time at large, setting out that:

(i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date.

(ii) Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events.

(iii) Insofar as the extension of time clause is ambiguous, it should be construed in favour of the contractor.

North Midland said that as a consequence of the first two propositions time was at large. Mr Justice Fraser explained that:

"the concept of 'time at large' does not mean that the contractor has an indefinite time to complete the works. If the completion date in the contract, and the mechanism for having that extended by means of awarding so many weeks to an originally agreed completion date, are inoperable or for some other reason no longer applicable, in general terms the contractor's obligation becomes one to complete the works within a reasonable time. That is what the shorthand expression 'time at large' is usually understood to mean."

North Midland said that dealing with concurrent delay in the way that the employer had dealt with it in response to the application for an extension of time was unfair and not in accordance with the terms of the contract. An extension of time ought to be granted without taking account of concurrent delays for which the claimant is responsible, and disallowing those latter periods. However, the Judge made it clear that he did not consider that the prevention principle arose at all.

In fact, Mr Justice Fraser was "crystal clear" that the parties had agreed that if the contractor were responsible for a delaying event which caused delay at the same time as, or during, that caused by a Relevant Event, then the delay caused by the Relevant Event "shall not be taken into account" when assessing the extension of time. That did not raise any issues of construction whatsoever. The parties were free to agree whatever they liked in terms of how the risk of concurrent delay should be allocated. There was no rule of law that prevented the parties from agreeing that concurrent delay be dealt with in any particular way.

At the end of his judgment, Mr Justice Fraser referred to a discussion about whether, where concurrent delay exists, the prevention principle is engaged at all, referring for example to the words of Mr Justice Coulson (as he then was) in the case of Jerram Falkus Construction Ltd v Fenice Investments Inc (No.4) [2011] EWHC 1935 (TCC):

"Accordingly, I conclude that, for the prevention principle to apply, the contractor must be able to demonstrate that the employer's acts or omissions have prevented the contractor from achieving an earlier completion date and that, if that earlier completion date would not have been achieved anyway, because of concurrent delays caused by the contractor's own default, the prevention principle will not apply."

It was suggested that these words should not be followed. Mr Justice Fraser disagreed and advised parties where disputes occurred about this point to proceed on the basis that the prevention principle is not engaged where there is concurrent delay.

Decision upheld on appeal. See Issue 218.
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North Midland Building Ltd v Cyden Homes Ltd

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Here, the claimant, the contractor and the defendant, the employer, had agreed certain bespoke amendments to the JCT Design and Build Contract 2005, one of which concerned the way in which extensions of time would be dealt with in certain circumstances. Clause 2.25.1.3(b) as amended read as follows: "2.25. 1.

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[2018] Lewisham Council Vs Lakehouse and CPR

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[2018] Lewisham Council Vs Lakehouse and CPR

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The case is the first in which the Court has had to decide on how subcontractors in the construction industry come to participate in project insurance..

CPR, a roofing sub-contractor, was engaged on the project, extensions to a school, by main contractor Lakehouse. After a fire the school building owner, Lewisham Council, and its operator, Haberdashers' Aske Federation Trust, sued Lakehouse and CPR for £11 million. Lakehouse settled with the Council and Trust through the project insurance policy, but it remained unclear whether CPR was also covered.

The court ruled that CPR was not entitled to cover provided by project insurance following a fire caused by 'hot work' it was carrying out. The judge said that because the terms of the roofing sub-contract expressly said that CPR had to obtain its own 'all-risks' insurance cover for the sub-contract works, it was not covered by the wider project insurance policy.

"A key issue in this case was whether the main project insurers were entitled to bring a subrogated recovery claim against the sub-contractor and if so, whether the sub-contractor was entitled to rely on the defence of co-insurance" said insurance expert Colin Read of Pinsent Masons, the law firm behind Out-Law.com. Read said the judge's main emphasis was the courts would give precedence to the underlying contract between the co-insureds, and the intention of the contracting parties, rather than the policy, although it was acknowledged that the intention of the insurers could be relevant.

Whilst the judge said that the project insurance undoubtedly covered sub-contractors of Lakehouse, whether those were agreed prior to the implementation of the policy insurance or afterwards, he was persuaded by a 1992 ruling in a case between Stone Vickers and Appledore Ferguson Shipbuilders which stated that "...for the purposes of ascertaining intention one may look not only at the policy documents but also at the contract between the assured and the alleged co-assured".
The judge decided that given CPR executed a contract "with an express term that it would obtain, provide, or have its own insurance, as here...", it never fell within the defined group of assureds under the project insurance.

The court therefore also rejected CPR's assertion that a subrogated claim ought to be precluded on the basis that it was or ought to be co-insured under the project insurance. The judge said "[I]f my analysis above is correct, and clause 6 of the roofing sub-contract prevents CPR from being an insured party (because the term that would have to be implied for CPR to have that status would be contrary to the express term agreed by the Lakehouse and CPR) then CPR is not entitled to rely upon the waiver of subrogation term within the Policy Insurance."

The decision went further in ruling that because CPR had its own insurance it was not entitled to cover by the main policy despite the fact that it fell within the definition of a subcontractor covered by that policy. The ruling said that CPR was not entitled to rely on a 'waiver of subrogation' clause which would have stopped the project insurers making a claim against CPR's insurer.

Although the loss incurred by the project insurers was £8.75 million, more than the £5m limit of CPR's cover, due to way the case against CPR was pleaded and the specific limit on recovery, the issue of uninsured losses did not arise. The judge said while it was not necessary to determine this issue, he doubted that in a commercial context the objective intention of the parties would be that CPR would be exposed to all of the losses, regardless of any limit on CPR's insurance cover.

"This decision provides welcome clarification for the construction insurance industry and contracting parties should to take considerable care in drafting construction contracts in terms of allocation of risk between contractors and sub-contractors, given that their intentions will be given precedence over any policy terms," Read said. "Insurance practitioners should consider 'other-insurance' and 'waiver of subrogation' clauses with caution in the context of CAR policies as this case limits the availability of co-insurance as a defence to subrogated claims wherever this is contrary to express contract terms," Read said.

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English court delivers landmark judgment on project insurance coverage

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The case is the first in which the Court has had to decide on how subcontractors in the construction industry come to participate in project insurance.. CPR, a roofing sub-contractor, was engaged on the project, extensions to a school, by main contractor Lakehouse.