explain) on which to found a claim, such as the present, to the existence

of a collateral warranty. The entire agreement clause obviates the occasion for any such search, and the peril to the contracting parties posed by the need which may arise in its absence to conduct such a search. For such a clause constitutes a binding agreement between the parties that the full contractual terms are to be found in the document containing the clause and not elsewhere, and that, accordingly any promises or assurances made in the course of the negotiations (which, in the absence of such a clause might have effect as a collateral warranty) shall have no contractual force, save insofar as they are refl ected and given effect in that document: Inntrepreneur Pub Co (GL) v East Crown Ltd [2000]

2 Lloyd’s Rep 11. However, it must yield, like any written provision in a contract, to the dictates of commercial common sense: North Eastern Properties Ltd v Coleman [2010] EWCA Civ 277; [2010] BLR 579. Also known (particularly in the United States) as a zipper clause.

Entire completion Term used in some contracts to signify completion of all the contract works as opposed to sectional completion.

Entire contract A contract complete performance of which by a party supplying goods or services is a condition precedent to the other party’s liability for the price. Such contracts are rare in the construction fi eld because of the almost universal adoption of a system of interim or stage payments as provided for by s109 of the Housing Grants, Construction and Regeneration Act 1996 and their effect has in any event been mitigated by the courts’ development of the doctrine of substantial completion.

Entresol An entresol is a mezzanine or an intermediate fl oor situated between the main fl oors of a building, and therefore typically not counted among the overall fl oors of a building. Commonly, a mezzanine is low-ceilinged and projects in the form of a balcony. The term is also used architecturally for the lowest balcony in a theatre, or for the fi rst few rows of seats in that balcony.

Envelope The external containment of a building which protects against ingress of water. Also used as a planning term to defi ne external appearance.

Environment Agency (EA) An executive non-departmental Public Body responsible to the Secretary of State for Environment, Food and Rural Affairs, the principal aims of which are to protect and improve the environment, and to promote sustainable development.

Environmental impact assessment (EIA) A written assessment of the likely effect of a design or a completed building upon the environment.

Includes the output of heat, moisture, noise, vibration or other emissions, the effect on local fauna and fl ora, the effect on local residents and the impact on drainage and water courses. Sometimes required as a condition of planning permission, particularly in sensitive areas. Also a reference to an assessment of the effect of the process of construction on, for example, carbon balance.

E&OE Errors and omissions excepted or excluded. A legal disclaimer found, for example, on specifi cations or price lists which tries to limit liability for mistakes on those documents.

EOT See Extension of time.

100 EPC

EPC See Engineering, Procurement, Construction.

E-procurement Increasingly favoured by government bodies, the use of electronic methods in every stage of the tender or purchasing process.

Epoxy mortar Mortar with a resin-based additive often used for its adhesive strength as a fi ller in cracks.

Epoxy paint Paint combined with resin-based materials activated by hardener and used to coat metal surfaces. Also used as a powder coating.

EPS See Emergency power systems.

Equitable set-off Relied as a matter of defence upon matters of equity which formerly might have called for injunction or prohibition, namely cases in which a court of equity would have regarded the cross-claims as entitling the defendant to be protected in one way or another against the plaintiff ’s claim. That does not mean that all cross-claims may be relied on as defences to claims. Two factors are critical: it would be manifestly unjust for the claim to be enforced without regard to the cross-claim, and there is a close relationship between the dealings and transactions which gave rise to the respective claims: Hanak v Green (1958) 2 QB 9; 1 BLR 1. There have been a number of different formulations of the test to be applied, the most recent being that of whether the cross-claim is so closely connected with the claimant’s demands that it would be manifestly unjust to allow him to enforce payment without taking into account the cross-claim: Geldof Metaalconstructie NV v Simon Carves Ltd [2010] EWCA Civ 667; [2010] BLR 401.

Equity A set of legal principles, originally developed by the Lord Chancellor and the Courts of Equity to prevent potential injustice arising from the strict application of the common law. A basic characteristic of equity is that relief will only be granted where it is fair to do so, embodied in the maxim: “he who comes to equity must come with clean hands”.

Equity clause An arbitration clause which permits the arbitral tribunal to take a broader approach than that of the strict application of the law, also known as “honourable engagement” or amiable compositeur clauses.

Such provisions are regularly used in other European jurisdictions but extremely rare in contracts governed by the law of England and Wales.

Equivalent temperature The temperature of air from which water vapour has been condensed and the latent heat thereby released has been used to heat the air. It is used as a measure of comfort.

Erection All Risks An insurance policy which typically protects a contractor against physical loss or damage to the contract works, construction plant and equipment or machinery.

Error ■ An error of law, which can be the subject of an appeal under certain legislation, such as the Arbitration Act 1996, is to be distinguished from an error of fact, which is often precluded from any right of appeal.

This distinction is a diffi cult one to make, given that there can be mixed questions of fact and law, for example, where the issue is whether notice was given as required by a contract. The courts are hostile to the “dressing up” of fi ndings of fact as errors of law. ■ See Clerical error or mistake and Slip rule.

ERs See Employer’s requirements.

European Committee for Standardisation (CEN) 101 Escrow Something which is held conditionally; for example, a bank

account or fund which is deposited to await the outcome of a dispute or a deed which is not to be released until payment has been made or some other condition has been fulfi lled. In the construction context, the retention held by the employer can be required to be kept as a separate fund in escrow, so protecting it from the employer’s possible insolvency.

Escutcheon An item of door furniture, often ornamented, which protects a key hole or lock cylinder from wear and tear or other damage. Word also used to describe plate used to conceal a functioning, non-architectural item.

ESD See Electrostatic discharge.

Estimate A price for the works provided by a contractor. Although an estimate is generally regarded within the construction industry as being of a more approximate nature than a quotation or tender, the description of a price as an “estimate” does not prevent it from amounting to a tender which can give rise to a binding contract if accepted by the employer:

Crowshaw v Pritchard (1899) Hudson’s Law of Building, Engineering and Ship Building Contracts 4th edn, Vol. 2, p. 274. ■ A projected costing of works provided by a construction professional. If the estimate is seriously in error, the professional may be unable to recover any fees for work on the project: see Nye Saunders & Partners v Bristow (1987)37 BLR 92 (CA). ■ To carry out the process of producing an estimate, quotation or tender. Estimating or pricing a job requires considerable experience and knowledge of the workings of the standard forms of contract.

Estoppel A principle of equity by which A is not allowed to alter his position if, to his knowledge, B has relied, to his detriment, on A’s statement or representation as to facts or A’s knowledge or belief. Promissory estoppel can arise where a party has given an assurance to another that they will not enforce their strict legal rights. Estoppel by convention may arise where the parties to a contract have acted on a common assumption that certain facts are true. Once they have acted in reliance of the truth, they cannot at a later stage deny the truth of those facts. ■ See Estoppel by convention, Promissory estoppel and, Proprietary estoppel.

Ethylene tetra fl uoroethylene (ETFE) A plastic polymer compound used for roofi ng panels and plastic coating. A light weight but strong material which provides a good protection from corrosion.

Eurocode (EC) Technical codes which stipulate engineering design standards throughout the European Union and are intended to supersede British and other national standards. To date, they comprise (1) basis of structural design (2) actions on structures (3) design of concrete structures (4) design of steel structures (5) design of composite steel and concrete structures (6) design of timber structures (7) design of masonry structures (8) geotechnical design (9) design of structures for earthquake resistance and (10) design of aluminium structures.

European Commission The executive body of the European Union.

European Committee for Standardisation (CEN) The European Union body responsible for drawing up European Standards such as the Eurocodes and other standards.

102 European Standard, Euronorm (EN)

European Standard, Euronorm (EN) The European technical standard for a wide variety of commercial and industrial activities.

Eurotunnel v TML [1993] 2 WLR 262: the House of Lords held that where parties had adopted in their contract a specifi c dispute resolution procedure then they were bound to follow that procedure irrespective of whether or not it was suited to the particular dispute in question.

Evaluative mediation A mediation process where the mediator takes a more active or interventionist role which can include putting forward views about the merits of a particular issue.

The Event Safety Guide (“The Purple Guide”) A document published by the Health and Safety Executive that provides guidance for event organisers to help them comply with the Health and Safety at Work, etc.

Act 1974 and other relevant regulations.

Evidence The means whereby a party proves his factual case, being relevant factual information concerning an issue. Evidence may be real evidence (the presentation of an object such as a fractured brick to demonstrate the mode of failure), documentary evidence, written evidence or oral evidence. It may be primary evidence which is fi rst-hand information, such as an original document or evidence from a witness who was directly involved or secondary evidence (copy documents or hearsay evidence). It is a matter for the tribunal to decide what evidence to accept and what weight to give to it. ■ See Extrinsic evidence and Hearsay.

Evidence-in-chief The evidence of a witness given in response to questions by the advocate representing the party who has called the witness; the process is also known as examination-in-chief.

Such evidence is now largely given in the form of a written witness statement, the contents of which the witness is asked to confi rm in his oral testimony.

EVOH Ethylene Vinyl Alcohol Copolymer. A barrier resin which is widely used as a packaging application.

EWCA England and Wales Court of Appeal, which forms part of a short reference or citation for a reported case.

EWHC England and Wales High Court. Again, forms part of a short reference or citation for a reported case.

EWN See Early Warning Notice.

Ex aequo et bono Latin: “according to what is just and good”. A rule that prevents one person being unjustifi ably enriched at the expense of another. Illustrations of this doctrine are familiar in cases of money paid by mistake or deceit which ought to be returned. A quasi-legislative exercise in which, typically, a tribunal fashions the outcome to the equities involved, instead of strictly applying rules of law, thereby overriding the strict rule of law. The principle does not have general application; it is found mostly in arbitration and tribunal cases. Section 46(1)(b) Arbitration Act 1996 recognises that parties may agree that their dispute should be settled in accordance with general principles of fairness. Such agreements are often interchangeably referred to as

“equity clauses”, arbitration “ex aequo et bono” or “amiable composition”.

The agreements effectively exclude rights of appeal to the court, because there is no question of law to appeal.

Ex gratia Latin: “out of grace”, not as a result of any legal obligation.

Exclusion clause 103 Ex offi cio Latin: “from the offi ce”, indicating that the professional position or offi ce which a person holds confers jurisdiction upon him; for example, the chairman of a panel who may be empowered to issue directions to the parties before a hearing takes place.

Ex parte Latin: “on one side only”, indicating that only one party will be attending or has attended a court hearing, particularly in relation to the hearing of an application without notice (now the favoured description) to the other party: contrast inter partes. Such applications can be used in cases of urgency when there is no time to serve the responding party, but most often in circumstances where giving advance warning of the application may frustrate its purpose; for example, an injunction to prevent the respondent disposing of assets or goods. ■ See Application, Freezing, Injunction.

Examination-in-Chief See Cross-Examination, Evidence-in-chief and Witness.

Excavation The removal of soil, subsoil or other material below ground level in connection with works, such as the construction of foundations or laying of pipework.

Excepted Risk Any risk liability for loss or damage caused by or arising from which is excluded under the all-risks insurance required to be taken out under the JCT standard forms. The excepted risks are: ionising radiations or contamination by radioactivity from any nuclear fuel or from any nuclear waste from the combustion of nuclear fuel, radioactive toxic explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof, pressure waves caused by aircraft or other aerial devices travelling at sonic or supersonic speeds.

Exceptionally adverse weather conditions A relevant event which can entitle the contractor to an extension of time for completion of the works under the JCT standard forms. The test to be applied in deciding whether or not an extension should be granted in respect of this relevant event is whether the weather itself was exceptionally adverse, not whether the amount of time lost by the adverse weather was exceptional: Walter Lawrence & Son Ltd v Commercial Union Properties (UK) Ltd [1984] 4 ConLR 37.

Excess Most insurance policies provide that the recoverable indemnity is to be only for “each and every claim” in excess of a particular sum, so that the insured will have to bear that sum. In the case of public liability policies, if more than one third party makes a claim for damages against the insured or there is more than one occurrence of damage, the question arises as to whether the excess will apply to each claim. Policies often contain “aggregation” provisions designed to limit the application of the excess where there is a “unifying factor” common to a number of claims.

In Trollope & Colls Ltd Haydon [1977] 1 Lloyd’s Rep. 244, an excess was held to apply to one comprehensive claim in respect of each house suffering defects and not to each claim in respect of each defect.

Excess spoil Surplus material arising from excavation works, usually because ground materials expand with air when excavated.

Exclusion clause A contractual provision, also known as an exemption clause, purporting to exclude liability wholly or in part, or a device having similar effect. This may be achieved by expressly stating that a party has no liability, or limited liability, for breach of a term or terms,

104 Execution against goods

or by defi ning a party’s obligations in such a way as to prevent a liability from arising. Exclusion clauses are construed strictly at common law. ■ See also the Unfair Contract Terms Act 1978 and the Test of reasonableness.

Execution against goods The seizure (a bailiff or High Court sheriff) of the property of the defendant by a certifi ed offi cer of the court on the instructions of a judgment creditor in order to secure and sell assets equal in value to the sum owed, following the issue of appropriate warrant from the court. ■ See Judgment.

Executory contract A contract under which something remains to be done by either party.

Exemplary damages Damages awarded to a claimant in circumstances where his or her loss has been caused or aggravated by malice or other wrongful conduct on the part of the defendant, to mark the court’s disapproval of that conduct. Exemplary damages may exceed the actual loss sustained by the claimant but are only awarded in exceptional circumstances. This is unlikely to arise in a construction case.

Exemption clause See Exclusion clause.

Exhibit (1) A document referred to in an affi davit or witness statement and identifi ed as such on its face. (2) A document or other evidence produced to and identifi ed during the course of a hearing.

Expanded polystyrene (EPS) An air-expanded plastic material which is commonly used to wrap or protect goods from damage in transit and storage; it is also used in insulated plasterboards and extrusions.

Expanded PVC PVC (polyvinyl chloride) is a plastic compound most often in sheet form where it is used for piping and insulation. When used in foam form, it is used for packaging and moulding as it is extremely light yet strong.

Expansion joint (EJ) A small gap in construction (eg in a concrete fl oor or brick wall) to allow for thermal expansion without damage to the structure. Also found in pipework and ductwork.

Expedition Promptness, dispatch. Sometimes combined with “diligence”

in a contractual term relating to progress, as in GLC v Cleveland Bridge &

Engineering Co Ltd (1984) 34 BLR 50 (CA), where it was said that what is due diligence and expedition depends on the object which is sought to be achieved.

Expense Most commonly used in the phrase direct loss and/or expense. It is likely that “expense” on its own would be given a restricted meaning limited to costs actually incurred.

Expert See Expert determination andExpert witness.

Expert determination A long established form of ADR whereby the parties submit a technical dispute to be decided by an independent expert. It is most commonly used to settle disputes as to rent reviews under leases or the value of shares to be bought and sold. Until the decision of the House of Lords in Arenson v Arenson [1977] AC 405, it was thought that such experts were immune from any liability for negligence because they were performing a function of an arbitral or quasi-judicial character. In Baber v Kenwood [1978] 1 Lloyd’s Rep 175, 179, where Megaw LJ said:

Experts protocol 105

“The parties desire a measure of certainty and by the words which they have used in their contract they seek to obtain it. They accept the risk, which applies equally either way, than expert may err; but they prefer to accept the risk rather than the alternative whereby either party would have the right to create the delay, the expense and, to be

“The parties desire a measure of certainty and by the words which they have used in their contract they seek to obtain it. They accept the risk, which applies equally either way, than expert may err; but they prefer to accept the risk rather than the alternative whereby either party would have the right to create the delay, the expense and, to be