- Collateral warranties and adjudication following Toppan Holdings Ltd v Simply Construct (UK) LLP
- How commonly in practice were disputes referred to adjudication under collateral warranties after the TCC’s decision in Parkwood?
- Do beneficiaries generally see a big advantage in having the ability to adjudicate through their collateral warranties, or do they rely solely on bringing claims (presumably for negligence or breach of contract, which we assume are more common disputes related to collateral warranties) in the courts?
- Do you think the Toppan case is likely to make it more difficult to procure collateral warranties from contractors, consultants etc. at the outset of or during the project? If so, how do you think this will impact warranties granted to funders of projects?
- If parties wish to have the right to adjudicate under a collateral warranty, do you think it would be sensible to include express adjudication clauses in collateral warranties granted at the outset/during the carrying out of a project?
Construction analysis: Toppan Holdings Ltd v Simply Construct (UK) LLP  EWHC 2110 (TCC) involved the enforcement of adjudicator’s award, made in an adjudication brought under a collateral warranty. The court held that the warranty did not constitute a construction contract for the purposes of section 104 of the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) as it had been executed long after the works had been completed. This is only the second reported decision on whether collateral warranties can be construction contracts under HGCRA 1996. In this analysis Sarah Elliott, partner and head of construction at Wedlake Bell, considers some of the ramifications which the decision may have on the procurement of and subsequent adjudications related to collateral warranties.
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