Dermot Woolgar

Construction & Engineering

Dermot’s construction and engineering practice covers the full spectrum of disputes that arise in this field. He acts and advises in disputes concerning the proper interpretation and application of contract terms (including the terms in the main standard form JCT, NEC, FIDIC and ICE contracts), in loss and expense claims, in defective work and final account disputes, and in disputes concerning delay and disruption. He is regularly engaged in adjudications, especially those of a more significant nature requiring the marshalling and analysis of substantial amounts of evidence. He is often engaged in disputes which have real property or insolvency-related aspects, because of his knowledge and experience from his earlier years in practice undertaking commercial chancery work.

He is a former co-author of the chapter in Emden’s Construction Law on construction insolvency.

He is listed as a leading practitioner in the field of Construction in Chambers and Partners and the Legal 500.

Selected Cases

• Acting for suppliers of construction materials and their insurers in c£3m product liability dispute concerning defective pressure-sensitive adhesive used in joinery fabrication, shop-fitting and general construction works. The adhesive, which had been newly developed with a high solids content, failed prematurely, resulting in extensive delamination. The contractors who had purchased the defective adhesive and who had used it in the course of their businesses claimed against the suppliers for the cost of the associated remedial works, and related losses. On recommendations made by loss adjusters who had been appointed by the suppliers’ insurers, the contractors’ claims were settled. Following these settlements, the suppliers took an assignment of the distributor’s cause of action against the assembler who had containerised the adhesive, and then sued the assembler as assignees to recover the settlement sums and other related costs and losses. The assembler in turn sued the adhesive manufacturer. The two actions were conjoined. Both the assembler and the manufacturer attributed the premature failure to workmanship errors by the contractors, and complained that the settlements were in any event unreasonably generous. They also blamed the failure on defects in the chemistry of the adhesive, for which they blamed each other: the assembler was alleged to have used containers which were contaminated with manufacturing residues, and the manufacturer was alleged to have used insufficient antioxidant and an unusual tackifier. The manufacturer also relied on a limitation of liability clause in its terms and conditions, the reasonableness of which the assembler put in issue under UCTA. Highly complicated materials failure and organic chemistry evidence. Following a trial of several test cases, but before judgment, the assembler discontinued against the manufacturer. Judgment subsequently given for the suppliers: all allegations of workmanship errors were dismissed and all the settlements were found to have been reasonable, both in principle and in amount (DIPT Ltd & Ors v Sanglier Ltd; Sanglier Ltd v Apollo Chemicals Ltd [2023] EWHC 426 (TCC))
• Advising national housebuilder in connection with a c£3m dispute concerning the meaning and effect of the abnormal costs provisions in a contract for the sale of development land acquired for the construction of 500 new homes.
• Acting for registered provider of social housing defending claim for breach of an overage agreement. The social housing provider had obtained planning permission for a scheme of development comprising 26 affordable dwellings. The claimant alleged that the social housing provider had been obliged under the overage agreement to apply for planning permission for a denser scheme of 39 dwellings, of which only 50% should have been affordable. Issues involved application of minimum space requirements in London Plan, appropriate calculation of developer’s profit, and relevance of actual construction costs versus BCIS rates (Maypole Dock Ltd v Catalyst Housing Ltd [2022] EWHC 701 (TCC))
• Advising national housebuilder in connection with a dispute arising under a building lease relating to a 3,500 new home development site in the south of England. Issues concerned anticipatory breach of obligation to complete certain infrastructure works, claims for prolongation costs and extended overheads, right to apply for extensions of time, and proper construction of various construction and completion obligations under the lease.
• Acting for contractor successfully resisting summary judgment application to enforce an adjudication award brought by a subcontractor; summary judgment refused and enforcement proceedings struck out on the grounds that the enforcement proceedings constituted an abuse of process, the subcontractor having brought court proceedings to enforce substantially the same claim before commencing adjudication proceedings, which court proceedings were struck out for procedural defaults, the subcontractor having unsuccessfully then applied for relief from sanctions (G&D Brickwork Contractors Ltd v Marbank Construction Ltd [2021] EWHC 3009 (TCC))
• Acting for trustees of property fund seeking to resist claim that the failure to achieve practical completion of a specialised rocket engine testing facility by the long stop date in an Agreement for Lease entitled the proposed tenant to rescind the AFL 6 months later; trustees contesting validity of notice of rescission on the basis that proposed tenant’s representations by words and conduct constituted forbearance and estoppel by convention; trustees claiming that the proposed tenant’s refusal to enter into the lease following the certification of practical completion entitled them to repudiate the AFL, and to seek substantial damages (Reaction Engines Ltd v BNP Paribas Depositary Services (Jersey) Ltd & Anr [2021] EWHC 753 (Ch))
• Acting for national provider of property maintenance services to the public sector in adjudication seeking balance of £3.7m said to be unpaid in respect of a £50m NEC3 ECC contract with a local authority, relating to works carried out to 1400 properties over a 4-year period. Issues included proper valuation of works, extent of works undertaken, relevance of contemporaneous records versus recent re-measurements, and lawfulness of retention in absence of a retention clause in the contract.
• Acting for property developer seeking specific enforcement of an Agreement for Lease relating to two purpose-built student accommodation blocks; proposed tenant resisting claim on grounds that buildings suffered from extensive defects and was therefore not practically complete by the long stop date in the AFL. Proposed tenant claimed that the certificate of practical completion was invalid and should be set aside. Proposed tenant counterclaimed for £multi-million damages. Developer brought consequential Part 20 proceedings against the building contractors, the employers agent, and M&E subcontractors. (Plymouth (Notte Street) Ltd v Mears Ltd [2019] EWHC 2185 (TCC))
• Acting for the property fund freehold proprietor of the Beetham Tower in Manchester sued by the lessee of the Hilton Hotel for specific performance of the landlord’s repairing covenants in the lease of the hotel, so as to compel it to repair defects in the glazing panels throughout the façade of the building. Issues involved the adequacy of the repairs already undertaken, the sufficiency of a regular inspection and maintenance regime, and the extent to which aesthetic considerations bear on the proper construction of repairing obligations. (Blue Manchester Ltd v North West Ground Rents Ltd [2019] EWHC 142 (TCC))
• Acting for the successful property developer respondent at trial in the TCC and subsequently in the Court of Appeal, in which the Court of Appeal considered the meaning of “practical completion” in English law for the first time in 50 years and held that trifling patent defects, even if irremediable, do not prevent the certification of practical completion (Mears Ltd v Costplan Services (South East) Ltd & Ors [2018] EWHC 3363 (TCC) and [2019] EWCA Civ 502)
• Acting for a national contractor in resisting a claim in adjudication brought by an employer for sums in excess of £1.3m allegedly overpaid during the course of a 5-year measured term JCT contract, as a result of alleged overcharging. Contractor denied overcharging and counterclaimed for £1.6m still unpaid and outstanding. Issues involved whether payments made on interim applications were subject to review when determining the final account in the absence of any pay less notices. The contractor was successful both in defeating the claim and on its counterclaim.
• Acting for property developer of part-commercial, part-residential, building destroyed by fire, seeking specific performance of the architect’s obligation to execute collateral warranties in favour of the building’s residential lessees. The terms of the warranties included restrictions on the architect’s liability to the beneficiaries and the architect’s PI policy excluded liability for most claims arising out of a collateral warranty. The spread of the fire was alleged to have been greater than it would have been but for design errors on the part of the architect. The court was required to determine the architect’s PI insurers’ contentions that the architect would be entitled to rely on the contributory negligence of the contractor as a partial defence to any claim under the warranties (Oakapple Homes (Glossop) Ltd v DTR (2009) Ltd (In Liquidation) & Ors [2013] EWHC 2394 (TCC))
• Acting for construction company concerning allegedly negligent design, failure to warn, and defective works at a new marina.
• Acting for UK/Malaysian steel fabricators in claim against Malaysian steel suppliers for defective goods and delays in delivery.

Events

• Dubai Arbitration Week 2023

Articles

• The enforcement of English judgments in the Cayman Islands by registration: reconsidering the objections
• Dermot Woolgar successfully establishes reasonableness of sums paid in settlement of product liability claims for defective construction adhesive

News

• Dermot Woolgar successfully establishes reasonableness of sums paid in settlement of product liability claims for defective construction adhesive
• MBL Construction Law Conference 2019 – London

Read more

Qualifications

• LLB (Hons) (Manchester University)
• Diploma in International Commercial Arbitration (Chartered Institute of Arbitrators)

Memberships

• Chair, Bar Council Overseas Territories Working Group
• Member, Bar Council International Trade Working Group
• London Court of International Arbitration
• Chartered Institute of Arbitrators
• London Common Law and Commercial Bar Association (Committee Member)
• Professional Negligence Bar Association
• Technology and Construction Bar Association
• Commercial Bar Association
• Administrative Law Bar Association

Publications

Co-author of chapter on Construction Insolvency in Emden’s Construction Law

“Regulation or Red Tape: the UK equity release market”: co-author (with Rob Sheldon and Liam Corrigan of DWF LLP) of chapter in Making the Most of Equity Release: Perspectives from Key Players, published by The Smith Institute, March 2012

“Still an Empty Concept?”: co-author (with Keith Shaw of Pinsent Masons LLP) discussing the implications of NYK Logistics Ltd v Ibrend Estates BV [2011] EWCA Civ 683 on the meaning of “vacant possession”, published in the Estates Gazette, 23 July 2011

“The Seduction of Iconoclasm”: discussion of the exemptions for religious organisations in the Equality Act (Sexual Orientation) Regulations, published in Law and Justice 2007, 158, 64

“Citibank NA v MBIA Assurance SA & Ors [2007] EWCA Civ 11”: co-author (with Justin Davis of Crown Office Chambers): Case Commentary published in International Corporate Rescue: Vol 4 (2007) Issue 5