Michael Wheater

Introduction & Contact details

Michael’s practice revolves around Commercial and Insurance matters 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.

‘Making strong strides into the construction arena, Michael Wheater is someone “whose initial judgments usually prove to be right.” While he is best known for his insurance-focused work, he has also been acting for local authorities on public procurement issues.’
Chambers UK 2012 - Construction

Cases

• Generation (UK) Ltd v S L Dower [2011] EWHC 3547 (Ch)
• Chalcraft & Anor v John Tompkins Associates Ltd [2011] EWHC 2079 QB (Merc)
• Trad Hire & Sales Ltd v Holbrook Investments Ltd & Anor [2010] EWHC 90 (Ch)
• Agilo Ltd v William Henry & Anor [2010] EWHC 2717 (Ch), [2011] BPIR 297
• Henry v Agilo Ltd [2010] EWHC 2045 (Ch)
• Sarkis v Mirza [2006] BPIR 146, CA
• AMCD Property Services Ltd v G (2004) All ER (D) 125, ChD
• Mortgage Express v Oni [2007] EWHC 371 (QB)
• The Mortgage Business v Ogot [2006] EWHC 653 (QB)

Publications

• ‘Reasonable Settlement Revisited’, Const L.J. (2011) Vol.27 No.4 p 259
• 'Robinson Redux: be careful what you wish for', Const L.J. (2011) Vol 27 No.2 p117 (with David Pliener)
• ‘The World has Changed but not for Experts’ RICS November 2006, L. Ex 2006 Dec 16 - 18
• ‘In Safe Hands? The Expert Witness Immunity from Suit’ L. Ex 2440 Aug 20 – 21

Downloadable Papers

• E-disclosure practicalities and pitfalls
• Worth the paper? Reform of the Construction Act by the Local Democracy Economic Development and Construction Act 2009
• Adjudication and the Consumer 2008

Qualifications

• 2001 LLB
• 2002 LLM (Distinction)
• 2003 Bar Vocational Course
• 2011 Tecbar Adjudicator
• 2011 MSc (Distinction)
• 2011 MCIArb

Professional Associations

• TECBAR
• Society of Construction Law
• Adjudication Society
• COMBAR

T:    020 7242 2523
DDI: 020 7691 0028
F:    020 7691 1234
E:    michael.wheater@hardwicke.co.uk

Construction & Engineering

The mainstay of Michael’s practice encompasses all kinds of construction and engineering disputes, acting for contractors, employers and construction professionals.
Chambers UK said in 2012 that he is “making strong strides into the construction arena” and that he is “someone whose initial judgments usually prove to be right”.

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.

He also has broad experience of cases relating to plant-hire under CPA and other terms.

Construction

• Hi-Tech Fabrication v Armson & Partners (2011) TCC – acting for project managers in this £20m claim arising out of the installation of gantry cranes at new factory premises.
• A v B (2011) - Advising structural concrete subcontractors in this £16m time/cost claim relating to the 2012 Olympic athletes' village.
• DAM Estates Ltd v Roger Wenn Partnership (2011) TCC – Acting for consultants in this £2m claim relating to rights of light.
• Zone F Ltd v Dialin Cladding Systems Ltd & Ors (2011) TCC - Acting for Structural Engineers in this claim following the collapse of rainwater systems on commercial office buildings.
• Volkswagen (UK) v Dencors & Ors (2011) TCC – Acting for Specialist Roofing Sub-contractors in this £500,000 claim arising out of the catastrophic failure of a car showroom roof.
• Hayes Davidson Ltd v Circleplane (2009 - 2010) 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 QC, for the fourth defendant sub-contractor in a claim for damage said to be caused by defective sewerage works.
• BAL 1996 Ltd & Ors v Polypane Glasindustrie BV (2009) TCC - acting in a reasonable settlement claim relating to the quality of glass spandrel panels.
• Beck Interiors Ltd v Hayley Sharpe Design Ltd [Formula 1] (2009) TCC - acting for a design and build contractor in relation to the value of work done under a letter of intent.
• AL v LPL (2009) TCC - 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.
• JCL v TB (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.

Adjudication

• Acting with Paul Reed QC in two £2 million adjudications relating to alleged defective dewatering works on a major civil engineering project.
• Acting with Paul Reed QC, in a £1.8 million adjudication relating to civil engineering works at a water treatment plant.
• Acting as sole counsel in a £1.2 million adjudication arising in relation to waste carriage and muck away.
• Acting as sole counsel for the employer in this dispute relating to a £1 million residential development.
• Acting with Paul Reed QC in an adjudication relating to the design & build of a church and school.
• Acting for the employer in this delay and disruption adjudication against Architects relating to late and inadequate structural steel drawings.
• Successful jurisdiction challenge on day 26 of a Scheme adjudication relating to a £1 million property later featured on Grand Designs.

Professional Negligence

Michael deals with claims for and against all manner of construction professional. For more information see Professional Liability.

Bonds & Guarantees

• Agilo Ltd & Anor v William Henry & Elizabeth Henry (2010) ChD – acting in this £15m guarantee dispute relating to guarantees given by the trustees of the pension fund of a large UK housebuilder.
• Enka v Banca Popolare (2009) (Comm) - Acting for the bank in enforcement proceedings following an order in this case relating to a performance bond.
  Advising contractors, employers and utilities as to the terms of on-demand bonds and default bonds.
• Acting for and against bondsmen in claims pursuant to bonds.
• Acting for the contractor in injunctive proceedings seeking to restrain employer from calling on a bond.

Insolvency

Michael 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. For more information see Commercial.

Procurement

• Local Authority - advising on procurement issues relating to a leisure centre.
• Local Authority 2 - advising on procurement issues relating to a community pavilion.
• Utilities - advising statutory undertaker in relation to a maintenance framework agreement.
• Housing Association – advising in relation to the procurement of gas and heating maintenance services.
• Housing Association 2 – advising on contracts for the provision of IT services.

Plant

• Trad Hire & Sales Ltd v Holbrook Investments Ltd & Anor [2010] EWHC 90 (Ch) - claim for interim delivery up of scaffolding against project manager in control of site.
• Acting for a joint venture partner to recover plant following the collapse of the JV.
• Acting for the Main Contractor in a claim to recover a large quantity of plant stolen from site. Also acting in ancillary claim against security consultants.
• Acting in numerous claims arising from damage caused by or theft of hired plant.

Utilities

• Advising as to the terms of a proposed framework agreement for maintenance services.
• Acting for the Utility in a £2m adjudication relating to mains water pipes.
• Acting for the contractor in a £1m waste disposal claim.
• 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.

IT, Technology and Telcoms

• 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 QC) - acting in a £20 million complex product liability matter relating to hi-tech security equipment for replenishing ATM machines.
• 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.

Property

• 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 etc. dispute relating to concrete underpinning.
• Acting for a local authority in relation to a business interruption case under a commercial lease arising out of the erection of scaffolding.
• Advising in a nuisance claim following the escape of water from a City building site.

Professional Liability

Michael's professional negligence practice revolves primarily, but not exclusively, 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

• Chalcraft & Anor v John Tompkins Associates (2011) EWHC 2079 QB (Merc) - Acting with Paul Reed QC for the Architect in this calim alleging negligent certification.
• Hi-Tech Fabrication v Armson & Partners (2011) TCC - acting for project managers in this £20m claim arising out of the installation of gantry cranes at new factory premises.
• DAM Estatse Ltd v Roger Wenn Partnership (2011) TCC - Acting for consultants in this £2m claim relating to rights of light.
• Rowe & Anor v Willingale (2011) TCC - Acting for architects in this claim relating to alleged delay in producing drawings.
• Express Hi-Fold Doors v Smith (2011) TCC - Acting for structural designers in this claim relating to the failure of airport hangar doors.
• Gracia v Howarth (2011) TCC - Acting for architects in this claim relating to the construction of a swimming pool and enclosure
• Zone F Ltd v Dialin Cladding Systems Ltd & Ors (2011 -) TCC - Acting for Structural Engineers in this claim following the collapse of rainwater systems on commercial office buildings.
• OFCOM v Mace & Ors (2010) - Acting for building services engineers in claim for negligent design of HVAC.
• OBL v CB (2009) - Acting for main contractors in this reasonable settlement claim against consulting M&E engineers for defective HVAC design.
• Advising the employer as to a claim against D&B contractors for negligence in the commissioning of LPHW and domestic cold water systems an an industrial estate.
• Acting for the employer in a claim against structural engineers for defective foundation design.

Commercial

Michael deals with commercial disputes in the High Court, particularly the TCC in London and on Circuit, as well as appearing in the Court of Appeal. His core 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 and he regularly lectures on the topic.

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 is an associate of the Chartered Institute of Arbitrators and he acts as an advocate in international arbitrations under ICC, LCIA and other rules. He is experienced in ad hoc references and with domestic arbitration under CIMAR and other industry rules.

Insolvency & Restructuring

Michael 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.

He has experience of both corporate and personal insolvency matters and has appeared on many occasions in both the Companies Court and in Bankruptcy.

Recent Work

• Generation (UK) Ltd v S L Dower [2011] EWHC 3547 (Ch) - Appeal confirming the restriction on the court’s power to adjourn a properly presented bankruptcy petition. Also considers the dangers of allowing time for a debtor to trade out of his debt given the risk that transactions will be rendered void.
• A v B (2011) Advising the liquidator of a maintenance company in this £500k claim to recover monies wrongfully withheld by a main contractor.
• Agilo Ltd v William Henry & Anor [2010] EWHC 2717 (Ch) - Appeal establishing that an agent had no right to issue a statutory demand absent an express contractual right.
• 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.
• Nationwide Air Conditioning Ltd v Archer-Hoblin Ltd (2010) ChD - Acting for the contractor in these proceedings based on the absence of withholding notices.
• 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.
• Acting and advising in several disputes relating to the insolvency provisions of the JCT Forms.
• Acting and advising in numerous matters for employers and contractors seeking to bring winding up petitions either for payment following certification or following an adjudicator's decision.

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”.

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.

Insurance

Michael acts for insurers and assureds predominantly in the construction sector. He is also instructed by loss adjusters to advise on coverage and technical issues of liability.

Michael acts and advises in relation to coverage and avoidance issues, subrogated claims and professional indemnity disputes. He also acts in disputes for and against Lloyd’s underwriters, managing agents and brokers.

In 2012, Chambers UK recommended Michael for his construction practice and noted “… he is best known for his insurance focused work”.

Recent Work

• Hi-Tech v Armson (2011) TCC Acting in a £20m professional indemnity dispute relating to the construction of gantry cranes.
• DAM Estates v Roger Wenn Partnership (2011) TCC Acting in a £2m professional indemnity dispute concerning rights to light issues at a substantial east London hotel development.
• Chalcraft v John Tompkins Associates [2011] EWHC 2079 QB (Merc). Acting in a £1.2m professional indemnity dispute concerning allegations of negligent certification of construction works.
• Archlane Ltd v Cofely Ltd & Anor (2011) TCC – Acting for M&E contractors in this £400,000 flood damage claim.
• OFCOM v Mace & Ors (2010) - Acting for building services engineers in claim for negligent design of HVAC.
• RC v Insurers (2010) - Acting, together with Paul Reed QC and David Pliener on behalf of CAR insurers in this US$150m 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.
• Acting in subrogated recovery actions following the theft of plant from construction sites.
• Acting in business interruption claims caused by local authority construction works.
• Acting and advising in numerous matters relating to fire, flood and other named perils.
• Advising on coverage issues under CAR policies.
• Advising on coverage issues under legal expenses and ATE policies.