Construction Projects in UK Law

It is in Regulation 47H(2) that one finds what exercise the Court “must” do: it must consider whether, if regulation 47G(1) was not applicable, “it would be appropriate to make an interim order requiring the contracting authority to refrain from entering into the contract”; it then goes on to say that it is “only if the Court considers that it would not be appropriate to make such an interim order may it make an order under paragraph (1)(a)”.

The failure to comply with the regulations is an unlawful act, whether or not there is no economic operator who wishes to bring proceedings under reg 47, and thus a paradigm situation in which a public body should be subject to review by the court.

This means that the employer cannot bring a second adjudication to determine the value of the work at the valuation date of the interim application in question. There is nothing to prevent the employer challenging the value of the work on the next application, even if he is contending for a figure that is lower than the (unchallenged) amount stated in the previous application.

Is the adjudicator obliged to inform the parties of the information that he obtains from his own knowledge and experience or from other sources and of the conclusions which he might reach, taking those sources into account? In my judgment it is now clear that, in principle, the answer may be: Yes. Whether the answer is in the affirmative will depend on the circumstances. The reason lies, at least in part, in the requirement that the adjudicator should act impartially.

It is, of course, open to parties to a contract for sale of goods or for work and labour or for both to exclude by express agreement a remedy for its breach which would otherwise arise by operation of law or such remedy may be excluded by usage binding upon the parties (c.f. Sale of Goods Act, 1893, section 55).

Counsel for Morrison submitted that damages would not be an adequate remedy for three reasons. The first and most important one is that, in a case where one of the key complaints is that of undisclosed criteria, it is very difficult indeed for the Court at trial to assess damages because assessment of what chance has been lost by the claimant in those circumstances is virtually impossible.

Accordingly, in deciding such claims, the court's function is a limited one. It is reviewing the decision solely to see whether or not there was a manifest error and/or whether the process was in some way unfair. The court is not undertaking a comprehensive review of the tender evaluation process; neither is it substituting its own view as to the merits or otherwise of the rival bids for that already reached by the public body.