Michael Levenstein

Areas of expertise

• Construction & engineering
  • Adjudication

    Adjudication

    Michael has wide-ranging experience with all aspects of adjudication, from jurisdictional issues to enforcement. In addition to being a TECBAR-accredited adjudicator, he regularly advises and participates in adjudication proceedings.

    He frequently leads large legal and expert teams, including where there are multiple simultaneous proceedings (eg, adjudications and counter-adjudications) between the same parties.

    Notable Cases

    • Nicholas James Care Homes Limited v Liberty Homes (Kent) Limited [2023] EWHC 360 (TCC) – Enforcement hearing concerning £3 million decision regarding overvaluations of care home works, discharge of freezing order and information disclosure order and adjudicator bias. (Led by Alexander Nissen KC)
    • Successfully acting on behalf of an almshouse charity in a substantial final account dispute (c. £1.2 million cross-claim) which raised issues including the locus standi of a third party funder to commence adjudication proceedings and the scope of a non-assignability clause.
    • Defending an adjudication enforcement by way of a Part 8 claim raising novel issues of jurisdiction, manifest injustice and estoppel in circumstances where the payee had referred a dispute to adjudication based on an obsolete payment application whose valuation the payee itself had reduced before commencing the adjudication.
    • Successfully acting for the claimant contractor in a c. £500,000 claim raising multiple issues in dispute across two works packages in a large housing development, including the use of sampling to determine unpaid variations, the binding nature of fixed price increases for changes to the scope of works and the calculation of lost profit and the release of retention upon termination.
    • Kersfield Developments (Bridge Road) Limited v Bray and Slaughter Limited [2017] EWHC 15 (TCC) – Junior Counsel (led by Michael Wheater KC) successfully acting for the contractor in enforcing a £1.2 million adjudicator’s decision in respect of an interim payment application. Other issues included whether an estoppel by convention had arisen between the parties, the validity of pay less notices and if the employer was entitled to stay judgment on the basis of insolvency and manifest injustice. In addition to confirming the courts’ orthodox approach toward adjudication enforcement, the judgment of O’Farrell J provided new analysis of section 111 of the Housing Grants, Construction and Regeneration Act 1996.
    • Successfully defending a contractor in respect of an adjudication claim for declaratory relief arising out of the construction of a hotel in Greenwich. Issues included whether a letter of intent agreed by a foreign property developer was contractually binding (specifically, in relation to a financial cap on construction fees) and whether practical completion was a precondition to recovery of any sums by way of quantum meruit.
    • Successfully acting for the referring parties in large-scale proceedings concerning four simultaneous adjudications. Two concerned claims against sister companies in respect of 7-figure M&E and plumbing works packages at a large hotel and resulted in a finding of manifest injustice on the part of the employer. The employer brought two counter-adjudications, both of which were defeated on jurisdictional grounds.
  • Construction & engineering litigation

    Construction & engineering litigation

    Michael mainly acts unled and frequently against silks across most areas of construction litigation, ranging from professional negligence to health and safety regulations. He is well-versed and has spoken widely on the changes introduced by the Building Safety Act 2022.

    Early in his practice, Michael was a TECBAR marshal assigned to Coulson J (as he then was) and O’Farrell J in the Technology and Construction Court.

    He was co-editor (with John Bradley and Simon Kerry) of the Construction Contractual Handbook (published by Construction Industry Publications), the British Constructional Steelwork Association’s flagship text on standard form construction contracts. The Construction Contractual Handbook provides analysis of key sections of most major standard forms, including recent editions of JCT, DOM/1 and DOM/2, NEC and ICC contracts.

    Michael is also a contributing author to Sweet & Maxwell’s Construction Professional Indemnity Insurance and Construction All Risks Insurance.

    Notable Cases

    • Successfully acting for a Government department in a dispute concerning 7-figure overspends as compensation events and design defects at a base. The case turned on the scope of a contract administrator’s duties where it was both a specialist design consultant yet had ceded partial design responsibility under a contractor’s design portion of an NEC framework agreement. Other issues included the appropriate methodology to quantify responsibility for cost overruns in the context of allegations of negligent performance by contract administrator and contractor alike. Difficult issues of quantum arose, including the suitability of sampling to extrapolate the global overspend. The claim and counterclaim value was c. £10 million.
    • 381 Southwark Park Road RTM Co Ltd v Click St Andrews Ltd [2024] EWHC 3569 (TCC) – The first-ever case awarding a Building Liability Order and Information Orders under sections 130 and 132 of the Building Safety Act 2022. A BLO was made against the second defendant at trial (a holding company for an insolvent SPV). The judgment analyses the meaning of ‘associated’ companies for the purposes of section 131 and the relevance of the original body corporate’s solvency in satisfying the ‘just and equitable’ requirement at section 130(1). Information Orders were made against multiple parties, including the defendants at trial and a third party subsidiary suspected of receiving assets at an undervalue from related companies. The Information Orders required full details of the consideration given for ownership in the subsidiary, its current financial position and any personal benefits received by the holding company’s shareholders.
    • Ongoing claim on behalf of energy-from-waste facility against 8 insurers concerning wrongful declinature under a property damage and business interruption insurance policy for c. £11 million. Issues in dispute turn on highly technical metallurgical evidence concerning the nature of corrosion cracking, the meaning of ‘sudden’ in the context of property damage and the extent to which an exclusion can be disapplied where there are two concurrent proximate causes of loss.
    • 381 Southwark Park Road RTM Co Ltd v Click St Andrews Ltd [2024] EWHC 3179 (TCC) – Acted on behalf of the successful claimant leaseholders in this TCC trial taking place over three weeks in which they won a decisive victory against a rooftop developer for negligently causing severe flood damage to their block of flats. The claimants were awarded approximately £3 million for building-wide damage and individual losses. The trial involved extensive expert evidence including fire safety compliance and structural engineering. The judgment also addressed a number of novel legal issues, including that a defaulting party could not rely on a contractual clause permitting its rescission of the contract to avoid liability, and that an RTM company could recover for building-wide remedial costs on behalf of its leaseholder members. The case also provides valuable guidance as to when a cross-undertaking may be released back to successful claimants (even while they continue to benefit from a post-judgment freezing injunction) and the award of indemnity costs.
    • Liberty Homes v Nicholas James Care Homes [2022] EWHC 1203 (TCC); [2023] EWHC 360 (TCC) – This was large-scale and multi-faceted litigation between 11 different companies and individuals concerning c. £8.5 million claimed across numerous final accounts, maintenance contracts and inter-company loans. A significant portion of the sums in dispute concerned the negligent design and/or construction of residential and care home buildings. This case had already been the subject of two prior adjudications and several hearings in the TCC. The case represented hard-fought construction/commercial litigation and broke new ground on a variety of topics including freezing injunction post-return date non-disclosure, apparent bias of an adjudicator following his demand for fees, and unreliable evidence as a ground for staying execution of summary judgment. (Led by Alexander Nissen KC in [2023] EWHC 360 (TCC))
    • 381 Southwark Park Road RTM Co Ltd v Click St Andrews Ltd [2022] EWHC 2244 (TCC) – The c. £1.25 million claim was brought by ten leaseholders and an RTM company against the freeholder/developer and parent company following catastrophic property damage due to flooding during the crane-lift of modular units at roof level. The case involved extensive structural engineering, architectural and surveying evidence, including the safety of ‘crash desks’ on lower floors of a building designed to absorb the collapse of rooftop extensions. Central issues in dispute concerned the extent to which a freeholder/developer can be held professionally negligent in its role as a specialist in the niche field of rooftop modular construction, with overlapping liability in tort, nuisance and under the Defective Premises Act 1972 as a landlord.
    • Successfully acted on behalf of the defendant architects in a professional negligence TCC claim concerning the redevelopment and extension of a row of neighbouring businesses in Bristol. The case concerned the extent to which tortious liability can arise where individuals not acting as consumers hold an architect liable for pure economic loss in the absence of a contractual relationship. Previous interlocutory hearings had resulted in the strike-out of multiple claimants and removal of £800,000 from their claim value, in addition to a substantial security for costs award.
    • Successfully acted on behalf of insureds in a £3 million claim for wrongful declinature of cover following the façade collapse of a listed office building in central London. (Led by David Pliener KC) Also acted as sole counsel successfully resisting pre-action disclosure by a former tenant (a law firm) for information concerning the pre-collapse state of repair.
    • Successfully acted in a c. £1.7 million claim arising from the insurer’s failure to indemnify the claimant for losses following damage to a vessel during fierce storms. The claim arose after the insurer initially accepted liability and then subsequently withdrew cover. The case concerned whether an insurer is prevented from denying cover if, having previously confirmed cover, the insured relied on that earlier representation to its detriment, as well as the impact of delay in denying cover.
    • Successfully acted for an insolvent contractor against professional indemnity insurers concerning widespread structural cracking to redevelopment works at a retail and leisure site. The cost of remediation was c. £2 million. The contractor brought its claim under the Third Parties (Rights against Insurers) Act 2010. Issues included identifying the correct defendants where multiple insurers had repeatedly sold on their books of business (including to insurers based abroad) and competing limitation periods between the original defendant and its insurers. (Led by David Pliener KC)
  • Construction arbitration

    Construction arbitration

    Michael has a busy construction arbitration practice, often as sole counsel but also as part of a wider team.

    Notable Cases

    • E v B – Defending property developer in an ongoing CIArb reference concerning the effect of waterfall provisions on payment to the main contractor out of c. £2.7 million in proceeds from the sale of private flats. Issues include the applicable rate of VAT where the flats were converted from a care home. Earlier interim applications for summary disposal and freezing injunctive relief were successfully resisted.
    • D v D – Defending a €4 million ICC arbitral claim between two overseas companies concerning the restoration of a Grade I-listed mansion in central London. Additional issues include the right to set-off liquidated damages for delay and remedial costs against the main contractor, security for costs arising from the claimant’s opaque financial record keeping and the jurisdictional impact of a dismissed appeal brought by the claimant in foreign proceedings. (Led by Paul Reed KC)
    • C v O – Responsible for conferencing and reviewing/editing complex witness evidence relating to the project management, quantity surveying and structural engineering input of a full-service consultancy. The arbitration involved a multi-jurisdictional and multi-counsel team in respect of a c. £200+ million claim concerning widespread design and build defects to an international airport. Amongst the key legal issues in dispute were the duties of a design supervisor to timeously issue drawings pending particulars of the employer’s requirements and the binding nature of provisional sums in calculating the final cost of works packages.
    • U v A – Defending a large contractor in a professional negligence claim valued in excess of £800,000. The dispute concerned the design and construction of a university’s indoor sports complex and the losses allegedly arising from, inter alia, interstitial blistering of its playing surfaces and the integrity of its ring beam foundation. Key issues in dispute include divestment of design responsibility, the causal mechanism behind subterranean vapour migration and the claimant’s entitlement to betterment in the context of a value-engineered design.
    • E v A – Junior Counsel acting for an architectural firm in a professional negligence claim valued in excess of £2 million concerning defective designs for a museum in Devon. Issues in dispute concern the adequacy of design information provided (eg, as concerns fire protection) and concurrent causes of delay affecting the critical path.
    • C v G and Others – Junior Counsel (led by Paul Reed KC) advised and drafted on behalf of the successful global insurer in a €13m international arbitration concerning a defects exclusion under a Construction All Risks (CAR) policy relating to a major infrastructure project in Denmark. Among the key issues were the distinction between ‘damage’ and ‘defect’ for the purposes of CAR policies and the relevance of fortuity to coverage.
• Commercial litigation

  Commercial litigation

  Michael has a successful practice extending across most types of commercial dispute, whether advisory or contentious, acting on behalf of businesses and individuals. He is experienced both as a trial and appellate advocate.

  He is well-versed in a wide number of procedural and substantive applications, with particular expertise in respect of freezing injunctions and disclosure applications.

  Michael sits on the Disclosure Review Working Group (chaired by Lord Justice Butcher) tasked with amending Practice Direction 57AD and simplifying disclosure in the Business and Property Courts.

  Notable Cases:

  • Click Above Corben Mews Ltd v 381 Southwark Park Road RTM Co Ltd [2025] EWHC 105 (TCC) – Determined that the ambit of a freezing injunction made against a judgment debtor did not include two leasehold properties sought to be disposed of by fixed charge receivers of another company within the same corporate group. Central to the decision was analysis of whether incomplete financial information could demonstrate an intra-group beneficial interest had been created such that the receivers’ subsequent charge had not been made for valuable consideration (and thus lacked priority).
  • Liberty Homes v Nicholas James Care Homes [2022] EWHC 1203 (TCC); [2023] EWHC 360 (TCC) – This was large-scale and multi-faceted litigation between 11 different companies and individuals concerning c. £8.5 million claimed across numerous final accounts, maintenance contracts and inter-company loans. The main claim was against 10 defendants in respect of unpaid substantial building projects alongside a c. £6 million cross-claim to claw back assets pursuant to the Insolvency Act 1986, ss 423-424. The case broke new ground across multiple issues, including the continuation of a freezing injunction post-return date following material non-disclosure and unreliable evidence as a ground for staying enforcement of an adjudicator’s decision. (Led by Alexander Nissen KC in [2023] EWHC 360 (TCC))
  • 381 Southwark Park Road v Click [2022] EWHC 2244 (TCC) – The c. £1.25 million claim was brought by ten leaseholders and an RTM company against the freeholder/developer and parent company following catastrophic property damage due to flooding during the crane-lift of modular units at roof level. The case involved extensive structural engineering, architectural and surveying evidence. The case resulted in a number of interlocutory skirmishes, including the granting of a freezing injunction (and information disclosure under CPR, r 25.1(1)(g)) and duelling summary judgment/strike out applications.
  • Successfully acted on behalf of the Ministry of Defence in defending a claim concerning unpaid sign-on bonuses brought by a surgeon in the Royal Army Medical Service. The case had far-reaching repercussions in respect of other doctors who might be entitled to similar compensation payments. The case involved multiple substantial hearings, including a successful application under Part 11 dismissing the claim for the non-justiciability of monetary claims against the armed services.
  • Humphryes and others v Ringway Infrastructure and Ringway Jacobs (ET Nos. 3301019/2015, 2302194/2015, 3302271/2015) – Successfully acted on behalf of a nationwide firm of solicitors in proceedings arising from one of the largest wasted costs applications as of that date. Subsequent instructions included case management of a group action consisting of hundreds of members in claims for unpaid holiday benefits in the Employment Appeal Tribunal: Minster Law v Olive and Ringway Infrastructure & Ors (UKEAT/0034/17/JOJ), Minster Law v Humphryes and Lafarge Aggregates & Ors (UKEAT/0035/17/JOJ) and Ringway Infrastructure & Ors v Humphryes and Minster Law (UKEAT/0036/17/JOJ)
  • Humphryes and others v Lafarge Aggregates & Ors (ET No. 3304540/2010) (led by PJ Kirby KC) – Acted on behalf of a firm of solicitors in defending one of the largest wasted costs applications to that date (in excess of £1 million). The case concerned, inter alia, the scope of the Employment Tribunal’s wasted costs jurisdiction, the procedural nature of wasted costs hearings and their assessment and the correct interpretation of the three-stage test in Ridehalgh v Horsfield [1994] Ch 205.