Justin Mort KC

Justin has extensive experience of disputes, determined in arbitration, litigation or by other means, arising out of major infrastructure projects, including those with a significant IT element. Some recent examples, from both the UK and international arbitration, include:

• Acting for a contractor in a series of disputes (in arbitration) subject to UAE law, including claims for variations and extension of time.

• Acting for an Austrian contractor pursuing a claim for extension of time and loss and expense arising out of the installation and upgrading of a sophisticated traffic control and management system.

• Acting for a consortium of contractors in relation to claims for payment arising out of the construction and upgrading of extensive waste treatment facilities.

• Acting in a great number of cases for either the contractor or the statutory authority or other employer in connection with disputes arising out of the construction, upgrading, and/or maintenance and repair of roads / highways or road networks.

• Acting for either the employer, contractor or specialist subcontractor in relation to disputes arising out of the construction, extension or upgrading of rail networks (above or below ground), and/or the design, manufacture and maintenance of rolling stock.

• Acting for various contractors in relation to disputes arising out of infrastructure works required for the London 2012 Olympics and other associated construction projects.

• Acting for various contractors engaged in the Crossrail project.

Justin has experience of disputes arising under bespoke and standard forms of contract. Below are some examples; all of the disputes referred to below were for multi-million euros or the local currency equivalent:

• Acting for a (French) EPC / main contractor in relation to disputes concerning termination, calculation of the final account, and claims for extension of time and further payment arising out of the construction of a gas power station (amended FIDIC red book).

• Acting for the employer defending claims for extension of time and additional payment in relation to the design and construction of a biomass energy project (FIDIC yellow book).

• Acting for a Spanish EPC contractor bringing claims for extension of time and associated loss and expense in relation to the construction of a gas turbine power plant (amended FIDIC form).

• Acting for the (Danish) main contractor bringing a claim for extension of time and associated loss and expense arising out of the construction of an onshore wind farm.

• Final account dispute arising out of the installation of an uninterruptible power supplies in a data centre by an Austrian contractor.

• ICC arbitration arising out of the construction of a gas pipeline: resisting allegations of defective work and pursuing claims for variations and delay.

• UNCITRAL rules arbitration arising out of the procurement and construction of a sunflower oil facility in Ukraine.

• LCIA arbitration concerning the refurbishment of an oil platform in the Middle East: defending the contractor’s delay claim on behalf of the employer.

• Acting for the EPC / main contractor bringing a claim for extension of time in relation to the construction of a CHP waste to energy plant.

• Acting for the employer defending a delay claim arising out of a copper mining project in Zambia (adjudication and LCIA arbitration, as well as in the Commercial Court).

• Acting for a government authority defending ground conditions claims in relation to the dualling of a main road (widening a single carriageway, in a highly sensitive and challenging environment, in Europe).  The principal issues concerned (1) geotechnical engineering evidence, (2) engineering design (specifically the piling and foundation design for a series of earth retaining walls) and allocation of risk under the amended NEC form of contract.
• Acting for the employer, a state backed entity, in relation to a gas mega-project in the Middle East defending a series of claims for extension of time and additional payment made by different contractor joint ventures relating to (1) ground water levels and (2) other ground conditions (amended FIDIC forms of contract). Issues arose as to the quality of ground, ground remediation measures required and piling and foundation design.
• Acting for a contractor bringing claims for ground conditions in relation to a significant airport expansion project in the Far East (amended NEC form of contract).  The case concerns geotechnical and civil engineering issues including the interpretation of available site information, appropriate foundation and piling design, and additional measures required as a result of actual ground conditions.
• Acting for a (US) EPC contractor pursuing claims in respect of unforeseen ground conditions arising out of the construction of a gas power station in the Far East (FIDIC).
• Acting for the (US) main contractor bringing a claim in respect of unforeseen ground conditions arising out of the construction of a hydro-electric dam in the Far East (FIDIC red book).
• Acting for contractor bringing claims for (a) unforeseen physical conditions and (b) force majeure, arising out of the construction of a landfill site in St Lucia under a FIDIC form (FIDIC).
• Acting for a developer in relation to the defective construction of a factory outlet shopping centre due to physical conditions.  The issues concerned (1) negligent foundation design and (2) the behaviour of soil contaminated by steel slag.
• Acting for state owned owner of a copper mine (Zambia); resisting claims for de-watering and unforeseen ground conditions in relation to the operation of the mine.
• Acting for contractor bringing claims for additional work and extension of time arising out of unforeseen physical conditions (including unexploded ordinance) at City airport, London.

• Final account dispute arising out of M&E works undertaken at a psychiatric hospital built for North Tyneside and Northumberland Mental Health NHS Trust: trial in the TCC.

• Acting for PFI concessionaire as defendant in TCC claim for additional payment brought by building contractor and as claimant in corresponding pass-through claim against South Tees Acute Hospitals NHS trust.

• Acting for a main contractor in a delay claim against Central Manchester and Manchester Children’s University Hospitals NHS Trust.

• Acting for a groundwork subcontractor in claim arising out of the construction of a community college.

• Acting for the operator of a local authority leisure facility and teaching pool against the maintenance contractor in a series of adjudications.

Recent experience of injunctive work includes the following:

• Acting for a contractor, resisting an application for a final injunction to prevent it from bringing a second adjudication, in circumstances where it had abandoned an earlier adjudication in relation to the same or overlapping subject matter (Jacobs UK Ltd v Skanska Construction Ltd).

• Acting for a designer, resisting an application for an interim mandatory injunction requiring the designer to restore its client’s access to the building information model (BIM) maintained by the designer.

• Obtaining a freezing order on behalf of a design and build contractor against an employer registered in the BVI, following a determination in adjudication that the employer had repudiated the building contract (Primus v Cannon).

• Acting for a contractor, resisting (1) an application by the employer in the TCC for a mandatory injunction for delivery up of project documents following, the determination of the employer’s entitlement to the documents in adjudication (2015), and (2) subsequent court proceedings (2017) in relation to the same or similar subject matter (Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd).

• Acting for an employer, resisting an application for an injunction to prevent the employer from making a call on an on demand bond, in the context of an amended FIDIC contract (J Murphy & Sons Ltd v Beckton Energy Ltd).

• Resisting an ant-suit injunction in the commercial court to prevent enforcement of interim injunctive relief obtained in support of arbitration (U&M Mining Zambia Ltd v Konkola Coper Mines plc).

• Obtaining an interim injunction on behalf of a contractor to prevent the employer from making a call on an on-demand bond (RG Spiller Ltd v Derhalli).

• Acting for a contractor seeking an injunction in the TCC to prevent the contractor’s solicitors from acting against it in adjudication proceedings.

• Acting for the claimant in a claim in the TCC for interlocutory and final mandatory injunctions (alternatively: order for delivery up), requiring the return of takeover packages unlawfully removed to Italy (Alstom Power Ltd v SOMI Impianti SRL).

• Application for injunction and strike out of a winding-up petition in the companies’ court; subsequent application for indemnity costs.

• Resisting an application in the TCC for an injunction requiring the main contractor on a sensitive building project to permit the employer’s remedial works contractor to attend site.

• Dispute as to a party’s entitlement to seek interim injunctive relief in the court local to the project in circumstances where the seat of the arbitration was London under the LCIA rules (commercial court): sections 2(3) and 44 of the Arbitration Act 1996 and article 23.5 of the LCIA rules considered.

• Application to set aside an arbitral award under section 68 of the Arbitration Act (serious irregularity) together with application for permission and appeal under section 69 on a question of law: construction of sections 57 and 70.

• Resisting a section 9 application to stay TCC proceedings for arbitration in Denmark arising out of a BVI company’s building project in the UK.

• Resisting an application to stay a counterclaim for arbitration made by the claimant at the same time as its own application for summary judgment under the same contract.

• Application to stay a counterclaim for arbitration in circumstances where the claim arose from a contract that provided for the resolution of disputes in litigation whereas the counterclaim arose out of a contract containing an arbitration agreement.

• Appeal in the TCC from an arbitrator’s refusal to grant security for costs in a final account arbitration arising out of the construction of a residential development.

• Acting for French train company designing new train concept, claim for extension of time and delay related costs: issues as to design responsibility.
• Acting for a UK contractor in relation to the design of a bridge over a railway line.  Dispute concerning extension of time and scope of work.
• Acting for a power network company upgrading the control system of an extensive underground metro (Europe). Issues as to extension of time and allocation of risk.
• Acting for M&E subcontractor in relation to the expansion and upgrade of underground metro stations (Europe).
• Acting variously for (1) civil engineering contractor and (2) MEP subcontractor in various dispute arising from the Crossrail project (UK): issues as to scope of work and allocation of risk including ground conditions.
• Acting for contractor with responsibility for upkeep of road network engaged by government department. Dispute as to unforeseen physical conditions encountered and allocation of risk: claims for additional payment.