Michael Wheater

Call:2003

Introduction

Michael’s practice focuses on Construction and Engineering disputes. It encompasses all levels of claim from residential construction through to high value development projects and industrial buildings.

Michael regularly undertakes drafting, advisory and advocacy work in the High Court, particularly the TCC, and County Courts, as well as appearing in the Court of Appeal. In addition, Michael regularly accepts instructions to act as an advocate in Adjudication, Arbitration and Mediation proceedings and can advise on appropriate forms of ADR such as early neutral evaluation and dispute resolution boards.

Michael is no stranger to complex technical disputes and 'big document' cases and he is well placed to advise as to effective and efficient methods of information management.

Tel:    020 7242 2523
ddi:    020 7691 0028
Fax:   020 7691 1234

michael.wheater@hardwicke.co.uk

COMMERCIAL

The main element of Michael’s commercial practice relates to construction and engineering disputes; however, Michael undertakes work in all aspects of commercial litigation including: franchising; sale of goods & consumer credit; agency and commercial agency; debt factoring and debt recovery; asset finance; and claims for restitution.

Arbitration

Michael has experience of arbitration proceedings, both with other members of chambers and in his own right. He frequently settles Statements of Case for Arbitral proceedings and acts as an advocate at all stages.  Michael is familiar with the standard Arbitration rules in construction disputes, such as CIMAR, and also has experience of paper-based arbitrations such as the Chartered Institute of Arbitrators short-form procedure.

Recent Work

• Acting in a team with two other members of chambers in a high value international arbitration relating to hurricane damage to a Caribbean hotel.
• Acting in a final account arbitration relating to the construction of a bespoke riverside residential property.
• Application in the TCC to stay proceedings under the arbitration agreement in JCT Minor Works 1998

Construction & Engineering

Michael’s construction practice encompasses all kinds of construction and engineering disputes, including: delay and disruption claims; extension of time claims; variations and defects claims; loss and expense claims; liquidated damages claims; the construction of contracts, including the industry standard forms, and risk, indemnity, limitation and exclusion clauses; adjudication and enforcement procedures; arbitration and mediation; related claims such as architects', surveyors' and designers' negligence claims.

The cross-over with Michael’s property practice has also exposed him to Party Wall Act etc. cases and all elements of dilapidations. Michael also has experience of the TCC Court Settlement Process.

Recent Work

• Acting, together with Paul Reed and David Pliener in an international arbitration relating to Hurricane damage to a substantial Caribbean Hotel development.
• Acting for a contractor in a final account claim / defective workmanship & delay counterclaim arising out of the redevelopment of a substantial Kensington property.
• Acting in a multi-party dispute relating to damage caused by tree-root encroachment to a London exhibition centre car park.
• Advising as to damage caused by water penetration at a London banking house.
• Acting for the design & build contractor in relation to the fit-out of the menswear department of a top London department store.
• Advising as to novation issues in a developer/contractor/sub-contractor relationship.
• Advising as to the enforceability of the adjudication provisions of JCT Minor Works 1998 against a consumer.
• Acting for a building surveyor in a dispute relating to advice given whilst retained as an expert witness. 
• Advising a local authority on public procurement obligations in respect of a leisure centre complex;
• Acting in a Party Wall Act dispute concerned with the underpinning of houses in Fulham.
• Acting for the Contractor in an action to recover monies from a housing association following the collapse of a major contract administrator in a “golden brick” project. 
• Acting in numerous contractors’ and architects’ negligence claims including a design and build claim relating to inadequate foundations.
• Acting for the Contractor in a claim against a sub-contractor for negligence in the commissioning of LPHW and domestic cold water systems at an industrial estate.

Adjudication

• Acting in a delay and disruption adjudication relating to late and inadequate structural steel drawings
• Successful jurisdiction challenge on day 26 of an adjudication under the Scheme relating to a property later featured on Grand Designs.
• Acting (with Paul Reed) in an adjudication relating to the design and build of a church and school.
• Regularly advising as to the enforceability of awards.

Cases

BAL 1996 Ltd & Magnesium Elektron Ltd v Polypane Glasindustrie BV (2009) TCC acting in a £350,000 Biggin v Permanite reasonable settlement case relating to the quality of glass panels supplied for a major commercial development in Birmingham. Settled before judgment following 4 day trial in Manchester TCC.

Beck Interiors Ltd v Halyey Sharpe Design Ltd [Formula 1] (2009 - ) TCC. Acting for a design and build contractor in relation to the value of work done pursuant to a letter of intent.

Stead-Clark & Ors v United Utilities Water Plc & Ors (2009 - ) TCC. Acting, as Junior to Paul Reed, for the fourth defendant sub-contractor in a claim for damage said to be caused by defective sewerage works.

Franchising

Michael has broad experience of franchising work and regularly advises franchisors and franchisees on a range of contentious and non contentious issues. Michael’s commercial, insolvency and property related experience allow him to address a wide range of issues within franchising.

Recent Work

• Acting together with leader Nigel Jones QC, on behalf of the franchisees’ association in a dispute with City Link.
• Acting on behalf of Stumpbusters in a dispute relating to the payment of franchise fees in an abortive franchise start-up.
• Acting on behalf of one Cash Converters franchisee in interpleader proceedings.
• Advising as to franchising issues in the collapse of a national network for the distribution of hair styling products.
• Acting in disputes on behalf of franchisees of the Power Service and Agency Express.
• Advising various individual franchisees on issues including breaches of restrictive covenants and the proper valuation of a franchise for “buy-back”.

Insolvency & Restructuring

Michael has experience of both corporate and personal insolvency matters and has appeared frequently in both the Companies Court and in Bankruptcy. He has seen a marked increase in construction related insolvency work during the present economic downturn and is well placed to deal with matters arising out of the insolvency of employers / contractors.

Recent Work

• Acting in a dispute relating to the insolvency provisions of the JCT Intermediate Form of contract 1998 edition.
• Acting for the Contractor seeking to present a winding up petition in relation to an unchallenged final account statement under JCT WCD 1998.
• Acting in a complex Trustee's application relating to the proceeds of a sale of several properties.
• An action against a Trustee in relation to numerous allegations of misfeasance.
• Advising on the re-structure of a significant group of haulage companies.

Cases

Sarkis v Mirza [2006] BPIR 146, CA. Appeal against committal for contempt of court in respect of failure to comply with Orders for the disclosure of assets in freezing injunctions issued in a £1.2 million debt recovery action.

Sullivan v City Electrical Factors Ltd (2005) ChD Acting for the Respondent in a case which determined the proper approach of the Court to admitting new evidence on appeals from the registrar relating to the setting aside of statutory demands.

AMCD Property Services Ltd v G, (2004) All ER (D) 125, ChD application under the new administration procedure considering the circumstances in which administration orders are appropriate

IT / Telecoms

In addition to his construction practice, Michael enjoys dealing with disputes of a technical nature, including IT and telecoms disputes.

Recent Work

• Acting in a number of cases to recover billed work following the collapse of a global telecoms business.
• Acting for the employer in a dispute relating to the design of bespoke software.
• Acting for the employer in a dispute relating to SEO services.
• Drafting t&cs for internet sales, together with privacy and user terms for websites.

Professional Negligence

Michael's construction and commercial work, together with his mortgage practice, has provided a broad base for his professional negligence work. He has acted in professional negligence claims involving mortgage brokers and IFAs and also in claims against surveyors, estate agents, solicitors, construction professionals and architects.

Michael also has a particular interest in cases relating to the liability in costs and otherwise of expert witnesses. He has written several articles on the subject and has recently acted for a surveyor in a dispute relating to advice and evidence given as an expert witness.

Recent Work

• Acting in a dispute with a Surveyor appointed as Contract Administrator under JCT MW 1998 relating to failure to supervise.
• Acting in a claim against a building surveyor for failing to notice significant roofing damage during a full structural survey.
• Acting in a claim against Architects for delay and disruption caused by negligent drawings.
• Acting for the employer in a claim against building services engineers for the negligent design of HVAC in a Holland Park apartment block.
• Acting in numerous claims on behalf of lenders against valuers.
• Acting and advising in several cases against mortgage brokers and IFAs in relation to mis-selling.
• Acting in several claims against solicitors for litigation negligence and non-contentious work including the settlement of wills and trusts.
• acting for insurers in a dispute relating to broker’s misrepresentations;

Trade

Michael’s commercial practice necessarily exposes him to trade disputes, ranging from one-off consumer sales to larger commercial sale and supply of plant and machinery. He has experience of trade finance, consumer finance, factoring and invoice finance, retention of title, distribution, commercial agency.

Michael is also well placed to advise on non-contentious issues and has experience of drafting bespoke t&cs for several businesses.

Recent Work

• Acting for the purchaser of defective lithographic printing equipment (TCC).
• Acting in a dispute relating to the production of packaging material for music CDs.
• Acting for the supplier in a dispute relating to the import and supply of nuts and vending machine products.
• Advising as to the proper level of payment following the termination of a commercial agent.

Cases

• Cashtec Ltd v (1)Spinnaker Ltd (2) Fluiditi Ltd (2006) TCC  (with Paul Reed) acting in a £20 million complex product liability matter relating to hi-tech security equipment for replenishing ATM machines.

Utilities

Michael’s construction practice overlaps with utilities and he has experience of disputes in the electricity, gas, water and sewerage sectors. Michaels experience covers claims for and against statutory undertakers and the contractors and sub-contractors who act for them.

Recent Work

• Acting for the sewerage lining sub-contractor in relation to a claim for defective works.
• Acting in an adjudication (with Paul Reed) in relation to the installation of a water main at a major water treatment works.
• Advising as to liability for the supply of defective fuel within a fuel bunkering network.
• Acting for a developer in a claim for delay and disruption against electricity suppliers for failure to connect within the contract time.
• Acting for the building owner in a claim against sewerage undertakers for damage caused to goods and machinery due to a sewer overflow. 

INSURANCE

Michael’s construction and professional negligence work often requires him to advise on aspects of insurance law, from coverage issues, breaches of warranties and other policy terms, misrepresentation and non-disclosure, to jurisdiction and applicable law. He has acted in cases involving policies of professional indemnity, product liability, public liability and contractor’s all risks (“CAR”). Michael also undertakes insurance related work such as claims against brokers.

BTE / ATE

Michael has advised or acted in a number of cases concerned with coverage provided by BTE and ATE legal expenses policies. Michael also has experience of the interplay between ATE policies and CFAs.

Recent Work

• Advising as to whether BTE legal expenses cover extended to the determination of a boundary dispute.
• Acting and advising as to whether ATE insurance alone could amount to security for costs, absent a bond, and the interpretation of bespoke clauses in the ATE policy. 

Construction / Engineering

A large proportion of Michael’s insurance work is in the construction sector, particularly CAR policies and public liability. Michael also has experience of advising in relation to NHBC cover and delay in start-up. 

Recent Work

• Acting, together with Paul Reed and David Pliener on behalf of CAR insurers in an international arbitration relating to Hurricane damage to a substantial Caribbean Hotel development.
• Advising loss adjusters / CAR insurers following the catastrophic failure of the roof of an Irish sports complex. 

Fire Damage

Michael’s construction experience has led to his acting in a number of fire and flood cases, on behalf of either the insurer or the assured.

Recent Work

• Acting in relation to a fire at a document archiving warehouse.
• Acting in relation to flooding at a car dealership. 

All Risks

Michael’s primary exposure to all risks insurance has been through his construction work and CAR policy work. However, Michael is well placed to advise as to property all risks and other all risks policies.

Professional Indemnity

Michael’s professional negligence practice often requires him to advise on coverage issues either for the Defendant professional or on behalf of PII insurers.

Public Liability

Michael acts in relation to public liability matters, mainly flowing from construction projects.

Recent Work

• Acting for the assured in a claim relating to beetle infestation in flour.
• Acting for the assured following a water escape from a site in central London.

PROPERTY & PRIVATE CLIENT

Michael’s property practice focuses primarily around services for property developers and property finance. His construction experience also means that Michael is well suited to technical building-related claims such as dilapidations claims and claims under the Party Wall Etc Act. 

Land & Real Property

Michael has acted in a number of real property matters, including boundaries, easements and neighbour disputes, property related insolvency, the beneficial and legal ownership of property and encroachments on to land.

The other main limb of Michael’s real property practice is property finance and he undertakes all aspects of mortgage work primarily on behalf of lenders and developer-borrowers.

Recent Work

• Acting for a developer in a tree-root encroachment case relating to a London Exhibition Centre car park;
• Acting for a farmer in a long-running boundary / nuisance matter;
• Acting for a developer in a Party Wall Act dispute relating to concrete underpinning.
• Acting on a substantial mortgage fraud.
• Defending a claim under the Disability Discrimination Act in relation to the provision of mortgage services.
• Advising and acting in a case which considered the inherent authority of conveyancing solicitors to amend a defective mortgage deed.
• Acting for the claimant to establish a right of way by prescription.

Cases

Mortgage Express v Oni [2007] EWHC 371 (QB) Successful appeal. Established that the Court should take account of past conduct when considering “Oppression”.

The Mortgage Business v Ogot [2006] EWHC 653 (QB) considering the appropriate test for and evidential hurdles in place when seeking a Civil restraint Order.

Landlord & Tenant - Commercial

Michaels practice includes commercial landlord and tenant disputes, primarily on behalf of developer/operators, including the interpretation of leases, possession claims against tenants and trespassers, ’54 Act renewals, disrepair and dilapidations, service charge disputes and breaches of tenancy agreements.

Recent Work

• Acting for a local authority in relation to a significant business interruption case arising out of the erection of scaffolding.
• Acting for a developer in possession proceedings against a recalcitrant tenant of a combined use commercial / residential property.
• Acting for a restaurateur in forfeiture proceedings against the background of contentious ’54 Act renewal proceedings.

Landlord & Tenant - Residential

Michael is also able to act in relation to residential matters, including: notices seeking possession, service of notices, possession proceedings, forfeiture proceedings, unlawful eviction, breach of covenant and service charge disputes (in the LVT and County Court).

Publications / Articles

• Adjudication and the Consumer 2008
• The World has Changed but not for Experts RICS November 2006
• Avoiding the Pyrrhic Victory - Costs under the Small Claims Track ILEX, March 2005
• In Safe Hands? The Expert Witness Immunity from Suit ILEX December 2004
• Worth the paper? Reform of the Construction Act by the Local Democracy Economic Development and Construction Act 2009.