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Mek Mesfin

Call 2014

Construction & Engineering

Mek has a wide range of experience of construction disputes and is familiar with the main contract forms including JCT, NEC, FIDIC, IChemE, LOGIC and RIBA forms.

Covid-19: Mek is advising on contractual issues and generally in relation to the Covid-19 pandemic. In particular, matters he has and continues to advise on include the performance of obligations, frustration, force majeure under a standard form contract, repudiatory breach of contract and termination, as well as advising on issues of strategy and reacting to non-binding government guidance.

Adjudication

Mek has experience of all aspects of statutory and contractual adjudication from advising prior to initiating adjudication to the enforcement of adjudicators’ awards.

Mek has also acted as an Adjudicator and he is on the TECBAR and Construction Plant Hire Association Panels of Adjudicators.

Selected Cases

Adjudication Proceedings

  • Contractor v West End Musical Show: Mek was instructed in relation to a c. £300,000 adjudication on behalf of a prestigious West End Musical in relation to the performance of a contractor pursuant to a Pre-Construction Agreement.
  • Contractor v NHS Trust (2018 – ongoing) – Mek is instructed as sole counsel in a c.£3m final account adjudication relating to the refurbishment of a hospital wing. His client achieved a very favourable outcome. The first adjudication resulted in a very significant payment to Mek’s client following a “true valuation” adjudication following an interim application. Mek has continued to advise whilst the project is closed out and continues to advise in relation to an ongoing dispute regarding retention.
  • Contractor v Architect [2017 – ongoing]: Mek was instructed as sole counsel in relation to a c. £3m adjudication regarding defective fire compartmentation.
  • M&E Consultant v Contractor (2018): Mek is advising an M&E consultant with respect to seeking retention sums and defending an intimated counterclaim for alleged defects on a £1.2m project.
  • Represented the responding party in a £850,000+ adjudication regarding conditions precedent, notice provisions, electronic service and valuation.
  • Advising a contractor on the most suitable method of pursuing a particular party in a near-insolvency situation; Mek is currently instructed in the adjudication in this £250,000+ dispute.
  • International Contractor v Subcontractor [2017] – Instructed on behalf of an international contractor to draft submissions in an Adjudication relating to a £10m+ project; the dispute relates to whether £1m+ of liquidated damages were validly levied or whether the provisions were inoperable and/or penal.
  • International Contractor v M&E Consultant (2017) – Mek was instructed as sole counsel to defend an international contractor against a c. £3m claim brought against it by an M&E consultant for alleged misrepresentations.
  • Settling a Notice and Referral on behalf of a contractor in an Adjudication relating to (i) failed payments following interim payment applications (ii) losses suffered by employer caused delay and (iii) recovering the costs of adjudication.
  • Advising on grounds for resisting the enforcement of adjudicators’ awards.
  • Drafting a Response and Rejoinder in a multi-million pound claim against an architect and contractor on a substantial domestic construction project.
  • Drafting Particulars of Claim and skeleton arguments for the enforcement of adjudicators’ decisions; addressing issues including jurisdiction, dispute crystallisation, validity of the reference to adjudication, validity of adjudicator appointment, timetabling, waiver and natural justice.
  • Advising a parent company guarantor on its liability to indemnify its subsidiary in respect of an adjudicator’s decision made against the latter.

Arbitration Enforcement

Mek is frequently instructed prior to and following adjudication proceedings, whether to provide advise on merits or strategy, and to pursue or resist the enforcement of Adjudicators’ decisions. He also sits as an Adjudicator and is on the TECBAR and CPA nominating Panels. Some examples of his recent instructions in contested applications on enforcing Adjudicator’s decisions in the High Court (TCC) include:

  • ICCT Ltd v Sylvein Pinto [2019] EWHC 2134 (TCC) [Waksman J; London TCC]: Mek was successful in enforcing an adjudicator’s decision; this case raised a plethora of issues relating to natural justice and jurisdiction, the most important of which was how a party/parties may provide an adjudicator with ‘ad hoc’ jurisdiction in the context of the residential occupier carve out at s.106 of the Construction Act.
  • Protostar v 203 Willesden Lane LLP [2019] HT-2019-000084 [London TCC; Alexander Nissen QC]: Mek successfully obtained the enforcement of an adjudicator’s decision in the sum of c.£250,000 and indemnity costs.
  • Tolent Construction Ltd v Benchmark Leisure Limited [2018] (Leeds TCC; HHJ Raeside QC): Mek appeared as sole counsel in the High Court, before HHJ Raeside QC, successfully obtaining summary judgment for the enforcement of a c.£200k Adjudicator’s decision. The Court considered whether the dispute arose from a separate agreement or a variation to the original contract.
  • Willmott Partnership Homes Ltd v Bethel Retirement Villages-Herne Bay Court Ltd [2017] 4 WLUK 219 (London TCC; Fraser J) – Mek advised on and appeared as sole counsel in the High Court (TCC), before Fraser J, successfully obtaining summary judgment for the enforcement of an Adjudicator’s decision worth c.£750,000. Mek had also been instructed in the underlying adjudication.
  • Aifos Properties Ltd v GHM Construction Ltd [2017; London TCC; Sir Antony Edwards-Stuart] – Mek appeared as sole counsel in the High Court (TCC), before Sir Antony Edwards-Stuart, successfully obtaining summary judgment for the enforcement of an Adjudicators award along with interest at 8% and full costs; involved issues of jurisdiction, natural justice and allegations of fraud and other impropriety.
  • Johnson v Euro Property Services (Surrey) Limited [HT-2016-000198] (London TCC) – Mek appeared as sole counsel in the High Court (TCC) before Mr Justice Fraser successfully obtaining summary judgment for the enforcement of an Adjudicators decision as well obtaining interest at 8% and costs on the indemnity basis.

 Arbitration

  • [Main Contractor v Sub-Contractor 2015 – ongoing]: Mek was instructed in an ad hoc international arbitration concerning the construction of a coal-fired power station in South Africa.
  • Main Contractor v Sub-Contractor [2016 – ongoing]: Mek is instructed in a $150m ICC Arbitration relating to the construction of a rail system (Qatari Law; ICC)
  • Main Contractor v M&E Contractor [2018 – ongoing]: Mek is instructed in a c. $200m ICC Arbitration between a Main Contractor and a MEP contractor (Qatari Law; ICC)
  • Main Contractor v M&E Contractor [2018 – ongoing]: Mek is instructed in a c. $500m DIAC Arbitration between an M&E Contractor and a Main Contractor (Qatari Law; DIAC)
  • M&E Sub-Contractor v Main Contractor (2017): Mek was instructed as sole counsel for a sub-contractor in relation to a multi-million pound International Arbitration arising out of M&E works at an alcohol plant. The case settled on favourable terms for Mek’s client, days before a 3-day evidentiary hearing (Law: English; Seat: Milan).
  • Advising on the likelihood of obtaining specific performance during the final stages of a long-term contract; involved issues of jurisdiction or whether the arbitral tribunal or the Courts of the lex fori was the correct forum for the application.
  • Advising on whether an employer was bound by the valuations of variations which his architect had agreed with the contractor; involved issues of agency in the context of a JCT Minor Works contract.
  • Advising a contractor in an ICC arbitration on obtaining security for costs in a dispute about the refurbishment of a jack-up drilling unit in the Caribbean.
  • Advising a party in an ICC arbitration on a proposed claim for breach of a Joint Venture Agreement; involved consideration of contract formation, condition precedents, implied terms, good faith and loss of a chance.

Litigation

  • The Purchasers of Ballard Hall Chase v Mandale Construction Limited [Manchester TCC; HHJ Eyre / HHJ Stephen Davies]: Mek was instructed as sole counsel for two defendants, a developer and contractor, in relation to a claim brought by 9 claimants for alleged defects in a residential project. The issues range from contractual interpretation of leases and building contracts, the application of the DPA 1972, and many technical issues in relation to defects. Mek is instructed to appear as sole counsel (the other two parties are represented by senior juniors) in a 9-day trial in September 2020.
  • [Gatwick Propco Limited v McAleer & Rushe Limited; London TCC; CCMC in June 2020]: Mek is instructed (led by Ivor Collett) on this multi-million-pound, multi-party matter relating to defective cladding at a Hilton Hotel at Gatwick Airport. The case raises significant issues of causation, expert evidence and Approved Document B.
  • Meddings v Aedis [2018 – ongoing; Newcastle TCC]: Mek is defending an Approved Inspector in a large multi-party claim worth c.£300,000+. The matter has had 3 procedural hearings before HHJ Klein and HHJ Davis-White.
  • Broom v Fluid [2018 – 2019]: Mek is instructed (led by Ben Quiney QC) Ben is acting for engineers in a multi-million pound claim arising from a private development that appeared on the “Grand Designs” programme and is alleged to require significant remedial works. The claim involves difficult questions of scope of duty, technical evidence and quantification arise, along with the unique feature of the building having its own television programme about it.
  • Thornley (1) and MacGill (2) v Assent Building Control Limited & Ors [2018]: Mek was instructed to defend an Approved Inspector in a large multi-party claim worth £250,000. After a contested hearing in the Bristol TCC before HHJ Russen QC, Mek’s client was successful in its application to have the claim against it struck out and obtained its costs of the entire action on an indemnity basis.
  • Individual v Supplier (1) and Manufacturer (2): Mek represents a Claimant in a £300,000+ case arising out of a large residential fire; the case involves detailed expert evidence from multiple disciplines.
  • International Contractor v National Architecture Firm: Advising an international contractor on several potential claims to be brought against various members of a professional team who worked on three multi-million pound projects resulting from widespread defects claims; raising complex issues of causation and proof in the context of a Biggin v Permanite claim against multiple defendants (ongoing).
  • Heritage Building and Conservation (1) and William Anelay (2) v The Art House [London TCC] – Mek advising on and representing, as sole counsel, an employer in a matter relating to whether retention sums purported to have become due to a contractor were validly assigned to a third party following the contractor’s insolvency and termination of the building contract. Mek was concurrently instructed in both litigation and adjudication on the matter; he advised on pursuing a strike out/summary judgment application which was successful.
  • Advising on and settling Particulars of Claim for an employer following the termination of a £150,000+ contract; issues relating to orally agreed contractual terms and termination.
  • Contractor v Private Individuals (TCC) (2016-2018): Mek was increased at pre-action stage and throughout proceedings for a contractor against an employer in relation to the design and construction of a high-end residential new build; issues included matters relating to contract formation, contractual terms and expert quantity surveyor evidence. Settled shortly before it was due to be heard for 5 days by the TCC in early 2018.
  • Advising a contractor on whether multiple parties intimating claims against it have valid causes of action; includes matters relating to the existence and extent of a contractors tortious duty of care and the existence and extent of collateral contracts.
  • Advising on and drafting a Defence and Counterclaim relating to the supply of allegedly defective ductwork required for a Hospital; included consideration of contractual terms following a “battle of the forms”, the implication of terms and expert evidence.
  • Settling a Defence and advising on an application for summary judgment against a claim by an interior designer for allegedly unpaid fees.
  • Defending a claim for extensions of time and variations due to unforeseen ground conditions in the construction of an underwater piling system.
  • Advising a contractor regarding a claim it was facing and the prospects of bringing an additional claim; involved issues including the cheque rule and its interaction with total/partial failure of consideration, assignment and contractual standard terms purporting to exclude negligence.
  • Successfully defended a plumber sub-contractor at a trial of a claim for allegedly defective work; the Court accepted Mek’s informal strike out / summary judgment application and dismissed the claim on the basis that there was no assumption of no responsibility/duty of care in relation to pure economic loss was owed.
  • Advising a contractor on whether its allegedly defective work amounted to negligence or breach of contract / its duty under the Defective Premises Act 1972; required consideration of expert quantity surveyor evidence and contractual terms.
  • Advising on the binding effect of various collateral warranties.
  • Advising on and drafting Particulars of Claim in a dispute over defects in a render system installed on a residential apartment development.
  • Drafting a Defence and Counterclaim to a claim for payment under a final account in a Target Cost contract.
  • Advising on limitation, breach of contract / duty and settlement parameters in a potential claim arising of a domestic development project.
  • Advising on whether the provisions of a Target Cost contract could be retrospectively operated after the end of the project.
  • Advising on obtaining injunctive relief in a Party Wall matter in order to prohibit further construction and mandate the taking of steps to ensure the property remained structurally sound.
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Awards


  • Best Memorandum (Honourable Mention), Willem C. Vis Moot (2014)
  • Monckton Chambers European Law Essay Prize, Finalist (2013)
  • Prince of Wales BPTC and Residential Scholar, Grays Inn (2013)
  • Bar Council Law Reform Essay Competition, Prize Winner (2012)
  • Herbert Smith/The Times Advocacy Competition, Prize Winner (2012)
  • David Karmel GDL Scholar, Gray’s Inn (2012)
  • One Essex Court / The Times Law Awards, Finalist (2012)
  • Oxford Law Society Essay Prize, Winner (2011)
  • Sir Isaiah Berlin Prize, Corpus Christi College, Oxford (2011)
  • Sharpston Scholarship, Corpus Christi College, Oxford (2010)
  • SSE Scholar, English Speaking Union (2009)

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Qualifications


  • Bar Professional Training Course, City Law School (2013 – 2014)
  • Graduate Diploma in Law, City Law School (2012 – 2013)
  • BA (Hons), Corpus Christi College, University of Oxford (2009 – 2012)

Memberships


  • COMBAR
  • TECBAR
  • SCL
  • PIBA
  • PNBA
  • BILA
  • TECBAR Adjudicator
  • Member of Panel of Adjudicators for the Construction Plant Hire Association.

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