Michael Wheater

Call:2003

Introduction and Contact details

Michael’s practice revolves around Commercial and Insurance disputes with a particular focus on Construction and Engineering disputes. He deals with all levels of claim from residential construction through to high value development projects and industrial buildings.

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

michael.wheater@hardwicke.co.uk

COMMERCIAL

Michael deals with commercial disputes in the High Court, particularly the TCC, and County Courts, as well as appearing in the Court of Appeal. His key areas of practice are listed below.

As Michael’s practice involves complex technical disputes, he is well placed to advise as to effective and efficient methods of handling e-disclosure and information management.

Arbitration

Michael’s construction and insurance work has given him experience in a wide range of arbitration proceedings, both with other members of chambers and in his own right.

Michael undertakes international arbitrations under ICC, LCIA and other rules. He is experienced in ad hoc references and with arbitration under CIMAR and other industry rules.

Construction & Engineering

The mainstay of Michael’s practice encompasses all kinds of construction and engineering disputes, acting for contractors, employers and construction professionals. He regularly accepts instructions to act in Adjudications, Arbitrations and Mediations and can advise on appropriate forms of ADR such as early neutral evaluation and dispute resolution boards.

Michael is also very experienced in cases relating to plant-hire under CPA and other terms.
 
Michael has a keen interest in Adjudication and is presently co-authoring a textbook on the subject.

Construction

• A v Insurers (2008 – 2010) – acting together with Paul Reed and David Pliener in a $136 million international arbitration relating to Hurricane damage.
• Hayes Davidson Ltd v Circleplane (2009 - ) TCC – acting for architectural image consultants creating images for the 20 Blackfriars development.
• Stead-Clark & Ors v United Utilities Water Plc & Ors (2009 - 2010) TCC - junior to Paul Reed, for the fourth defendant sub-contractor in a claim for damage said to be caused by defective sewerage works.
• A v CBI (2009 – 2010) - acting for the paint and lining contractor in this £1.2 million delay and disruption claim arising out of works at the Grain LNG plant. Also acted in subsequent reasonable settlement claim against lining suppliers.
• BAL 1996 Ltd & Ors v Polypane Glasindustrie BV (2009) TCC - acting in a £350,000 reasonable settlement case relating to the quality of glass spandrel panels.
• 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.
• J v B (2008) TCC - acting for a contractor in a £1.2 million claim arising out of the redevelopment of a substantial Kensington property. Settled following TCC Settlement process.
• Local Authority – advising on procurement issues relating to a leisure centre.
• Local Authority 2 – advising on procurement issues relating to a community pavilion.

Adjudication

• MGL v PDL – acting in a £1.2 million adjudication arising in relation to waste carriage and muck away.
• VWC v MHL – acting, with Paul Reed, in a £1.8 million adjudication relating to civil engineering works at a water treatment plant.
• RJB v RDS – acting with Paul Reed in an adjudication relating to the design & build of a church and school.
• RS v N&H – acting for the employer in this dispute relating to a £1 million residential development.
• AB v NS – acting for the employer in this delay and disruption adjudication against Architects relating to late and inadequate structural steel drawings.
• BL v BS - successful jurisdiction challenge on day 26 of an adjudication under the Scheme relating to a property later featured on Grand Designs.

Technology

• Vitesse v NCS (2008) TCC - acting for the purchaser of defective lithographic printing equipment.
• 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.

Franchising

Michael has broad experience of franchising work and regularly advises franchisors and franchisees on a range of contentious and non-contentious issues.

Recent Work

• Acting together with leader Nigel Jones QC, on behalf of the Initial City Link Franchisees’ Association.
• Acting for Vendo in a dispute relating to the assignment of a franchise.
• 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 and contractors.

Recent Work

• Acting for the directors of a major construction company in numerous matters following the company’s entry into administration.
• Acting for the Contractor in an action against a housing association following the insolvency of the Contract Administrator in a “golden brick” project.
• 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

• Henry v Agilo Ltd [2010] EWHC 2045 (Ch) – Considers the requirement for the Appellant to adduce evidence of inability to pay if seeking a stay of costs orders pending appeal.
• 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 - Considered the proper approach when admitting new evidence on appeals 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 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 professional negligence practice revolves primarily, but not exhaustively, around construction professionals. He has acted for and against architects, engineers, surveyors and project managers and Michael has particular experience of cases relating to building services engineers.

Michael is also regularly instructed in cases involving mortgage brokers and IFAs, building surveyors, estate agents and solicitors.

Recent Work

• B v D – Failure to supervise claim against surveyor appointed as Contract Administrator under JCT MW 1998.
• B v N – Claim against Architects for negligent design.
• O v CB – Claim against building services engineers for negligent design of HVAC.
• O v M – Acting for building services engineers in claim for negligent design of HVAC.
• E v V – Acting for building services contractor in claim against designers for failure to provide timely P&ID drawings.
• TE v F – Claim against D&B contractors for negligence in the commissioning of LPHW and domestic cold water systems at an industrial estate.
• AS v G – Acting for the employer in this claim against structural engineers for defective foundation design.

Utilities

Michael has experience of disputes in the electricity, gas, water and sewerage sectors.

Michael's experience covers claims for and against statutory undertakers and the contractors and sub-contractors who act for them.

Recent Work

• Acting for consumers in an action challenging the existence of a deemed contract under the Electricity Act.
• Acting for the statutory undertakers in numerous cases relating to reservoirs and water treatment plants.
• Acting for statutory undertakers and contractors in numerous cases relating to sewerage works and sewerage infrastructure.

INSURANCE

Michael acts for both Insurers and assureds in relation to a wide range of policies. He also acts in disputes for and against Lloyd’s underwriters and managing agents and brokers.

Michael advises on policy coverage and avoidance and has particular experience of construction and engineering project policies.

BTE / ATE

See “Costs” below.

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 and he regularly advises on coverage issues in relation to these and other named perils.

All Risks

As a result of his exposure to CAR policy work, Michael is well placed to advise as to coverage issues under 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.

PROPERTY & PRIVATE CLIENT

As a result of Michael’s construction experience, his property practice focuses on three core elements:

• Property advice and representation for developers and main contractors;
• Property and Project finance, including bridging loans, bonds, mortgages etc.
• Property related professional negligence.

Michael’s construction experience also means that he is well suited to technical building claims such as complex dilapidations claims and claims under the Party Wall Etc Act.

Recent Work

• Acting for the developer in a tree-root encroachment case relating to a London Exhibition Centre car park.
• Acting for the developer in a Party Wall Act dispute relating to concrete underpinning.
• Acting for a local authority in relation to a business interruption case arising out of the erection of scaffolding.
• Advising in a nuisance claim following the escape of water from a City building site.
• Acting in numerous claims on behalf of lenders against valuers.
• Acting in numerous claims on behalf of purchasers against surveyors, valuers, mortgage brokers and estate agents.
• Acting against solicitors on a substantial mortgage fraud.
• Defending a Disability Discrimination claim in relation to the provision of mortgage services.

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 when seeking a Civil restraint Order.

COSTS

Michael advises Claimants and Defendants in a wide range of costs matters and appears in detailed assessment hearings in the SCCO.

Michael is well placed to advise as to the enforceability of CFAs and CCFAs and the recoverability of uplifts and insurance premiums. Michael also has a particular interest in ATE and BTE legal expenses policy coverage disputes.

Publications / Articles

• Presently co-authoring a Handbook of Construction Adjudication
• Worth the paper? Reform of the Construction Act by the Local Democracy Economic Development and Construction Act 2009.
• Adjudication and the Consumer 2008
• “The World has Changed but not for Experts” RICS November 2006, L. Ex 2006 Dec 16 - 18
• “Avoiding the Pyrrhic Victory - Costs under the Small Claims Track” L. Ex 2005 Mar 38 - 39
• “In Safe Hands? The Expert Witness Immunity from Suit” L. Ex 2440 Aug 20 - 21