دانلود کتاب Remedies in Construction Law (Construction Practice Series)

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Cover
Half Title
Title
Copyright
Dedication
Contents
Preface
Table of Cases
Table of Legislation
Chapter 1 Introduction
Chapter 2 Rectification
Interpretation
The scope of the remedy of rectification
The standard of proof
Mutual mistake
Unilateral mistake
The impact of contractual provisions
Powers of an arbitrator to rectify
Powers of an adjudicator to rectify
A discretionary remedy
Chapter 3 Rescission
Grounds for rescission
Misrepresentation
Need for a representation
Representation must be false
Representations of fact and representations of opinion or intention
Representations of law
Inducement, materiality and reliance
Duress
Conflict of interest: bribery
How rescission is effected
The court’s power to award damages under the Misrepresentation Act 1967
Defences
Affirmation
Delay (Laches)
Impossibility of restoration of the parties’ pre-contractual positions
The position of third parties
The effect of contractual provisions
Rescission and arbitration
Chapter 4 Specific remedies under contract
Chapter 5 Quantum meruit
Contractual claim for a “quantum meruit”
Quantum meruit in the law of restitution
Additional work going beyond a variation
Work done in anticipation of a contract
Work done under a contract discharged through breach
Work done under a void or unenforceable contract
Adjudication
Work done under a contract with one party for the benefit of another
Chapter 6 Termination
Repudiation at common law
Termination under standard forms of contract
Interplay of common law and contractual rights to terminate
Consequences of termination
Chapter 7 Frustration
The doctrine of frustration
Effect of frustration
A doctrine not to be lightly invoked
Extrinsic evidence as to the assumptions of the parties
The application of the doctrine of frustration
Destruction of the subject matter of the contract
Delay
Changes in price
Amount or significance of variations
Shortage of labour
Difficulties in obtaining supplies
Strikes
Legislative changes
War
Self-induced frustration
Effect of contractual provisions
Consequences of discharge through frustration
Similarities between the doctrine of frustration and the law of mutual mistake
Chapter 8 Damages for breach of contract: The rule in Hadley v Baxendale
The “starting point”
Losses within reasonable contemplation
Chapter 9 Damages for breach of contract: Measure of damages
Cost of repairs or diminution in value?
Reliance upon advice
Betterment
Date of assessment
Mitigation of loss
Chapter 10 The “black hole” cases
Introduction
The general rule
The exception to the rule
The “rule” in Dunlop v Lambert
The Albazero
The St Martins extension
Panatown
Panatown – the facts
Panatown – the narrow ground
The narrow ground is good law
The narrow ground as a rule of law
The narrow ground will be displaced where there are other remedies
Accountability to a third party
The narrow ground in summary
Panatown – the broad ground
Spectre of double recovery
Panatown – the result
Panatown – the future
The Buncefield explosion: Shell UK v Total UK
Black holes and assignment
Contracts (Rights of Third Parties) Act 1999
Latent Damage Act 1986
Chapter 11 Damages for breach of contract: Some other general principles
Causation
Standard of proof
Reliance and expectation damages
Contributory negligence
Foreign currency awards
Damages for mental distress and physical inconvenience
What benefits are to be taken into account?
Taxation
Account of profits/damages for “loss of opportunity to bargain”
Distinguishing damages claims from claims within a contract
Chapter 12 Damages in tort
Negligence
Physical damage and personal injury
Economic loss
Application of the rules relating to recovery of economic loss to cases arising out of construction projects
Causation
Foreseeability
Interrelationship between scope of duty, causation and foreseeability
Contributory negligence
Measure of damages
Mitigation of loss
Betterment
Nuisance
Trespass
Deceit
Infringement of intellectual property rights
Claims for breach of statutory duty
The economic torts
Chapter 13 Recovery of loss of profits and overheads or management costs
Loss of profits: recovery in contract
Loss of profits: recovery in tort
Recovery of overheads and management charges
Exclusion and limitation of liability clauses
Chapter 14 Liquidated damages and extensions of time
Unenforceability of penalty clauses
The law before Cavendish Square Holdings v Makdessi
Cavendish Square Holdings BV v Makdessi; ParkingEye Ltd v Beavis
The implications of the decision in Cavendish Square Holdings v Makdessi
Can liquidated damages be increased or decreased?
The prevention principle
Extension of time clauses
Concurrent delay
Deduction of liquidated damages
Chapter 15 Recovery of damages and costs
The simplest case: straightforward third party (Part 20) proceedings
Passing on a claim for damages awarded in previous court proceedings to which the new defendant was not a party
Recovery of damages awarded by a foreign court
Passing on a claim for damages awarded in a previous arbitration to which the new defendant was not a party
Recovery of monies paid in settlement of an earlier claim
Recovery of costs
Indemnity clauses
Chapter 16 The problem of “global” claims
Chapter 17 Claims under the Civil Liability (Contribution) Act 1978
“The same damage”
“Liable”
Assessment of contribution
Summary
Chapter 18 Claiming finance costs and interest
Recovery of “loss and expense”
Interest as damages
The Senior Courts Act 1981
The Arbitration Act 1996
Adjudication
The Late Payment of Commercial Debts (Interest) Act 1998
Chapter 19 Set off and abatement
Connected cross-demands
Mutual liquidated demands
Abatement
Equitable set off
Contractual set off
Exclusion of rights of abatement and set off
Lapse of time
Limitation
Set off in insolvency
Bankruptcy set off
Set off and corporate insolvency
Abatement and set off and the Housing Grants, Construction and Regeneration Act 1996
The old law
The new regime
Arbitration clauses and transaction set off
Chapter 20 Provisions excluding or limiting liability
Incorporation of terms
Sufficiency of notice
Battle of the forms
Interpretation of exclusion (exemption) and limitation clauses
Exclusion clauses are construed strictly
Construction contra proferentem
Liability for negligence
Limitation clauses
Liability for fraud
Deliberate breach
Repugnancy
Consequential and indirect losses
Entire agreement clauses
Schemes allocating risks
Unfair Contract Terms Act 1977
Remedies for misrepresentation
Consumer contracts
Defective Premises Act 1972
Terms implied by statute
Contracts (Rights of Third Parties) Act 1999
Chapter 21 Injunctions
Final prohibitory injunctions
Final mandatory injunctions
Interim injunctions
Freezing injunctions
Notification injunctions
Damages in lieu of an injunction
Assessment of damages for breach of an undertaking as to damages
Contempt of court
Forum shopping: anti-suit injunctions
Injunctions to restrain proceedings brought in breach of an agreed dispute resolution procedure
Injunctions in connection with arbitration proceedings
Powers of an arbitrator
Injunctions to restrain a nuisance or trespass
Injunctions in respect of retention monies
Injunctions to restrain a call on a bond
Refusal of an injunction in respect of a tendering process
Chapter 22 Specific performance
Introduction
This is a remedy rarely granted
Principles for the granting of specific performance
When specific performance will not be decreed
Courts are more reluctant to grant specific performance in construction contracts
Exceptions to the general rule
Other circumstances in which an order for specific performance may be granted
Sufficient definition
Contracts requiring constant supervision
Specific performance may not be granted where it will cause injustice to the defendant
Adequacy of damages
Mutuality of remedy
Co-ownership and specific performance
The powers of an arbitrator
The powers of an adjudicator
Third parties
Chapter 23 Declarations
Introduction
Jurisdiction of the courts
Exclusion of jurisdiction by agreement
The legal effect of a declaratory judgment
Advantages of declarations
Summary of the principles applied by the courts to the grant of declarations
Declarations of right
Interim declarations
Negative declarations
Granting a declaration
Chapter 24 Limitation
Claims in contract
Claims in tort: negligence
Claims in tort: negligence and latent damage
The longstop date
Fraud, concealment and mistake
Claims for contribution under the Civil Liability (Contribution) Act 1978
Claims in tort: nuisance and trespass
Defective Premises Act 1972
Acknowledgement
Injunctions, specific performance and other equitable relief
Amendments
Arbitration
Adjudication
Tolling agreements
Chapter 25 Dispute resolution
Litigation
Arbitration
Confidentiality and privacy
Procedure
Expedition
Choice of arbitrator
Expense
Challenges to, appeals from, and enforceability of awards
Summary
Adjudication
Background
The approach of the Act
Alternative dispute resolution
Mediation
Mini-trial
Dispute boards
Engineer’s decisions
Index