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.

    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 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 defending a firm of structural engineers in respect of the suitability of their survey of a barn conversion into three flats. Issues included the authenticity of contemporaneous contractual documentation, the need for expert evidence in professional negligence claims in adjudication, and difference in scope between the engineers’ duties in contract and tort and whether an implied warranty as to the fitness for purpose of a design could be negated by the property development expertise of the referring party.
    • 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.
    • 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.
  • Construction & engineering litigation

    Construction & engineering litigation

    Michael has extensive experience across most areas of construction litigation and advisory work, ranging from professional negligence to health and safety regulations. He is well-versed and speaks widely on the changes introduced by the Building Safety Act 2022. Michael typically acts as sole counsel against more senior opponents, especially in professional negligence, property damage and insurance coverage disputes.

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

    He is currently 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

    • 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, 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. The case is also likely to be of substantial importance in seeking the first Building Liability Order under the new Building Safety Act 2022, and determining whether a contractual rescission clause has any legal effect.
    • 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 injunctive post-return date non-disclosure, apparent bias of an adjudicator following his demand for fees, and non-disclosure/unreliable evidence as a ground for staying execution of summary judgment.
    • Ongoing defence of a professional negligence TCC claim brought against a major civil engineering contractor arising from allegations of c. £650,000 in damage caused to a sewer pipe and which required a c. 60-metre section to be permanently diverted. Novel legal issues include the extent to which a breach of the Building Regulations 2010 (Schedule 1, Requirement H4) can amount to evidence of negligence where no physical damage is alleged to have occurred and the extent to which a statutory undertaker can be guilty of contributory negligence.
    • Ongoing defence of a professional negligence TCC claim concerning the redevelopment and extension of a row of neighbouring businesses in Bristol. The case concerns 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 have already 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.
    • Ongoing £3 million claim for wrongful declinature of insurance coverage following the façade collapse of a listed office building in central London. (Led by David Pliener KC)
    • Ongoing c. £1.7 million claim arising from the insurer’s failure to indemnify claimant for losses following damage to a vessel during fierce storms. The claim arises after the insurer initially accepted liability and then subsequently withdrew cover. The case involves the important issue as to whether an insurer is prevented from denying cover if, having previously confirmed cover, the insured relied on that earlier representation to its detriment. Any future judgment will clarify the extent to which the doctrine of estoppel operates in coverage disputes, and the impact of delay in denying cover.
    • Advising in respect of a c. £10 million claim as to whether similar exclusion wordings relied on by co-insurers operated differently in excluding loss for material damage and business interruption arising from corrosion and wear and tear. In particular, advising on the effect of the exclusion clause where corrosion was a proximate cause of loss, but operated concurrently with another proximate cause (which was not excluded).
    • Advising on the merits of an application for a Building Liability Order under the Building Safety Act 2022, including both the underlying legal merits of such an application and procedural advice on obtaining the same.
    • Advised (with Charles Bagot KC) on the effect of a Final Order in the National Oilwell Varco v Constructiewerken litigation before the English Commercial Court in proceedings subsequently issued in the Court of Rotterdam. The dispute concerned, inter alia, the collapse of a derrick crane at a Singaporean port which caused over $20 million in loss and damage. Issues arising included whether an English procedural judgment could give rise to res judicata or cause of action estoppel abroad and whether companies within the same group acted as privies of each other.
    • Acted and advised on behalf of a major food manufacturer in respect of claims arising from the installation of a defective electric switch panel causing losses in excess of £900,000.
    • Successfully defended a claim for breach of contract arising from the installation of fire doors as part of a £600,000 extension and refurbishment project at a nursery school in Hampshire.
  • Construction arbitration

    Construction arbitration

    Michael has a busy construction arbitration practice, both as sole and junior counsel.

    Notable Cases

    • 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 – Sole Counsel (against Leading Counsel) 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, and acts on behalf of both 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, ranging from pre-action disclosure to security for costs and a specialist practice in respect of freezing injunctions.

  Notable Cases:

  • 381 Southwark Park Road v Click [2022] EWHC 2244 (TCC) – The c. £1.25 million claim is 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. Judgment is awaited following a two-week trial in the TCC. The case involved extensive structural engineering, architectural and surveying evidence. The case has already resulted in a number of interlocutory skirmishes, including the granting of a freezing injunction and information disclosure order under CPR, r 25.1(1)(g) and duelling summary judgment/strike out applications.
  • 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 post-return date material non-disclosure and non-disclosure/unreliable evidence as a ground for staying execution of summary judgment enforcement of an adjudicator’s decision.
  • Currently acting on behalf of a well-known land agency in respect of substantial introduction fees due on several plots of land sold for c. £19 million in and around Luton. The related cases involve issues of contract formation, intra-group corporate liability, misrepresentation and unjust enrichment.
  • Advising in respect of the scope of representation and conflicts of interest in the ongoing Bluemountain v Yuksel litigation concerning claims in misrepresentation and deceit following the issuing of $200 million in senior notes and associated restructurings of the Turkish construction and infrastructure giant.
  • 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 to 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 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.