Construction analysis: The Privy Council, on an appeal from the Supreme Court of Mauritius, held that an arbitrator was wrong in law to conclude that a lump sum contract, based on the JCT Standard Form of Contract 1980, had been varied by the parties as a result of significant additional and substituted works so as to become a measure and value contract. The board also considered that the arbitrator was correct to dismiss the employer’s counterclaim for the costs of appointing third parties to carry out certain works—even if the contractor had been in breach, the employer had not identified any loss, ie excess payment over what it would otherwise have paid the contractor. The board further held that the arbitration agreement comprised two separate agreements, which were to be read together in determining the ability to appeal the arbitration award.

Dispute Resolution analysis: Daniel Webb, barrister at St Philips Stone, considers the case of Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd and other companies. In a draft of the judgment handed down on 27 October 2017, HHJ Waksman QC sitting as a judge of the High Court held that a claim made under section 423 Insolvency Act 1986 (the Act) did not fall within the jurisdictional gateways of CPR PD 6B, paras 3.1(20)(a), 3.1(4A) or 3.1(3). The first of these gateways must be interpreted narrowly. It is not sufficient that an enactment is worded entirely generally for it to fall within the gateway. Following the rationale of Re Harrods (BA) [1992] Ch 72, the enactment must contemplate proceedings against persons outside the jurisdiction. As section 423 of the Act did not, the gateway was not available.

Dispute Resolution analysis: Kristina Lukacova, barrister at New Square Chambers, considers the case Huda v Wells and others, which applies the rules on service out of the jurisdiction where permission of the court is required to claim for libel and malicious falsehood. The court held that Mr Huda should not have been granted permission to serve the Claim Form on the defendants in Jersey because his claims had no real prospect of success and, in any event, Jersey was clearly the most appropriate forum.

Dispute Resolution Analysis: Professor Dominic Regan of City Law School, London, considers the case Rosgosstrakh Ltd v Yapi Kredi Finansal Kiralama AO. The claimant got its own name wrong on a claim form and accompanying particulars. It was an insurer, and it had issued a protection and indemnity policy in respect of a vessel owned and managed respectively by the first and second defendants. When the vessel later sunk, the claimant paid out $1.55m. It subsequently sought to set aside the policy on grounds of material non-disclosure and issued these proceedings to recoup the outlay and secure a declaration of non-liability for any other losses that might be claimed.

Local Government analysis: Kevin Long, solicitor at Hackney Community Law Centre, considers the case Panayiotou v London Borough of Waltham Forest; Smith v London Borough of Haringey. In Hotak v Southwark LBC the Supreme Court established that a person is vulnerable for the purposes of homeless assistance if they are ‘significantly more vulnerable than ordinarily vulnerable’. The Court of Appeal has now considered what is meant by the word ‘significantly’. The correct test is a qualitative assessment rather than a quantitative threshold. Additionally the case addressed the contracting out of review functions where duties under the Equality Act 2010 are engaged.

Dispute Resolution analysis: Christopher Snell, barrister at No5 Chambers (London), considers the case of Manorshow Ltd v Boots Opticians Professional Services Ltd. An application to substitute Boots as defendant was allowed in circumstances where all parties agreed that Boots was not the correct defendant, but a related party, European Vision Limited (EVL), was the correct party. Further, Boots had been joined as defendant as a result of its own conduct. That weighed heavily in favour of the CPR 19 discretion being exercised in Manorshow’s favour. Boots, having necessitated the substitution application by reason of its own conduct, would bear the costs of the substitution application.

Dispute Resolution analysis: Julia Dias QC, Barrister at 7 Kings’ Bench Walk considers the case of Halsall v Champion Consulting Ltd. This case concerned a claim in negligence by solicitors against their tax advisers in relation to advice regarding investment in two tax avoidance schemes. There were two major issues: the scope of the defendants’ duty and limitation. HHJ Moulder held that the defendants had undertaken to advise the claimants in relation to both schemes, rather than simply providing them with information, and had given negligent assurances as to their effectiveness upon which the claimants had relied in making the investments. The claims nonetheless failed as the relevant causes of action had accrued more than six years prior to the issue of proceedings pursuant to section 2 of the Limitation Act 1980 (LA 1980). The claimants were also unable to rely on LA 1980, s 14A, as they had acquired the relevant knowledge more than three years prior to the commencement of proceedings.

Dispute Resolution analysis: The Privy Council has confirmed that a company which knowingly received property in breach of fiduciary duty (the property having been acquired at an underpayment) was liable not just for the amount of the underpayment, but was also liable to account for any subsequent increase in the value of the land attributable to it, regardless of the absence of any loss to the claimant in this respect.

Local Government analysis: Alexander Campbell, barrister at Arden Chambers considers the case AA v London Borough of Haringey. In this decision, the Upper Tribunal considered whether the need for transport to school can ever constitute an educational need. If it can be an educational need in respect of which special educational provision can be required, then the provision of transport to school will be a matter in respect of which the First Tier Tribunal (Health, Education and Social Care Chamber) has jurisdiction in an appeal concerning the contents of an educational, health care and social care (EHC) plan. The Upper Tribunal held that transport matters do not, of themselves, fall outside the jurisdiction of the First Tier Tribunal.

Public Law analysis: Daisy Mackersie, barrister at Monckton Chambers, considers the case of Joseph Gleave & Son Ltd v Secretary of State for Defence. Mr Justice Coulson sets out the principles that will be applied by the court when determining whether to order an expedited trial or a stay, and confirms that there is no presumption in favour of expedition in public procurement cases, even when the tender process is ongoing. On the facts in this case, Coulson J found that expedition was not appropriate and ordered that the matter be stayed until after the completion of the procurement—the complexity of the claim made an expedited timetable impossible and, in any event, he was not persuaded that there was sufficient urgency to outweigh the prejudice that would be caused to the defendant and the disadvantage to other court users.

Dispute Resolution analysis: The Technology and Construction Court (TCC) has held that an adjudicator has jurisdiction to decide an issue in a way which differs from both parties’ cases and did not need to request further submissions before doing so. Gideon Shirazi of 4 Pump Court considers the implications of this decision.

Local Government analysis: This case concerns the appeal of a local authority against the decision of the Special Education Needs and Disability Tribunal (SEND) made on 10 September 2015, under reference EH860/15/00014. The SEND tribunal had held that the local authority were obliged to provide for any transport that H, a 21-year-old woman who lives with her parents, may need to get to and from her educational institution under an Education, Health and Care Plan (EHCP).The Upper Tribunal (UT) has allowed a local authority to exclude the costs of transport to and from a specified place of education in an EHCP, as it was deemed unnecessary for woman of H's age, despite her vulnerabilities, following an interpretation of section 508F of the Education Act 1996 (EA 1996).