Bovis Homes Ltd v Kendrick Construction Ltd [2009] EWHC 1359 (TCC) (09 June 2009)

Bovis Homes Ltd v Kendrick Construction Ltd [2009] EWHC 1359 (TCC) (09 June 2009)

Kendrick should have raised arbitration in its December 2007 response; failure to do so warrants costs order against Kendrick for costs incurred by Bovis since that date which would not have been incurred if arbitration had been raised promptly.

Citation
[2009] EWHC 1359 (TCC)
Parties
Claimant: Bovis Homes Limited; Defendant: Kendrick Construction Limited
Jurisdiction
England and Wales
Judgment Date
09 June 2009
Procedural Posture
Application for Stay of Proceedings / Ruling on Stay and Costs
Outcome
Stay granted; costs order made against Kendrick for costs thrown away since 18 December 2007, to be assessed after arbitration; Kendrick entitled to costs of stay application up to 14 April 2009; Bovis entitled to 50% of costs incurred since 14 April 2009.
Legal Topics
Arbitration Agreement, Pre Action Protocol, Costs Thrown Away, Stay of Proceedings
Construction Law Arbitration Arbitration Agreement Pre Action Protocol Costs Thrown Away Stay of Proceedings

Case Brief

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Parties

Bovis Homes Limited

Claimant

Kendrick Construction Limited

Defendant

Procedural Posture

Application for Stay of Proceedings / Ruling on Stay and Costs

Legal Issues

  1. 1 Whether defendant's late invocation of arbitration clause should affect costs liability
  2. 2 Application of Pre-Action Protocol requirements to arbitration objections

Ratio Decidendi

Kendrick should have raised arbitration in its December 2007 response; failure to do so warrants costs order against Kendrick for costs incurred by Bovis since that date which would not have been incurred if arbitration had been raised promptly.

Court Disposition

Stay granted; costs order made against Kendrick for costs thrown away since 18 December 2007, to be assessed after arbitration; Kendrick entitled to costs of stay application up to 14 April 2009; Bovis entitled to 50% of costs incurred since 14 April 2009.

Orders

  • Proceedings stayed for arbitration under section 9 Arbitration Act 1996.
  • Kendrick to pay Bovis costs thrown away since 18 December 2007, subject to assessment after arbitration.