Baldwins Industrial Service plc v Barr Ltd [2002] EWHC 2915 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

This was a contract for the supply of plant and labour. That the crane came with a driver was not incidental. B had hired the crane plus operator to undertake construction work. The contract was a construction contract within the HGCRA and the adjudicator had jurisdiction. As the party claiming was in receivership, a stay of execution of the judgment was granted, upon conditions of payment into court and prompt commencement of proceedings.

HHJ Frances Kirkham, Technology and Construction Court (Birmingham)

6 December 2002

A (the claimant) hired a crane, together with a driver, to B (the defendant). The crane was damaged and A sought damages from B. The matter was referred to adjudication. The adjudicator rejected B's argument that he lacked jurisdiction and that B was not liable because A's driver was not competent. He decided that B should pay for repairs, transport costs and lost hire charges.

A applied for summary judgment to enforce the adjudicator's decision and to require B to reimburse the adjudicator's fees. B argued that the adjudicator lacked jurisdiction as the contract between the parties was not a construction contract under the HGCRA.

A claimed that the labour element in the contract brought it within the scope of s105(1)(e) HGCRA. The examples under s105(1)(e) must be construed to include "building or engineering operations ancillary to construction operations" as these were words of the same kind. B argued that this was a contract for mere hire, since the contract did not concern construction operations and the surrounding circumstances cannot change a contract for hire into one for construction operations. Alternatively, B contended that the contract fell within the exceptions in s105(2)(d)(i) and (ii). A argued that supply of plant plus labour could not fall within the exceptions as the contract was not for mere delivery to site of plant. B also suggested that the crane was under B's control, which indicated that the contract was for mere hire. The Judge referred to Williams v West Wales Plant Hire Co Ltd and others and Thompson v T Lohan (Plant Hire) Ltd and decided that this was a contract for the supply of plant and labour. That the crane came with a driver was not incidental, especially given B's defence in the substantive dispute that the driver was incompetent. The contract was a construction contract within the HGCRA and the adjudicator had jurisdiction. The Judge decided on the facts that B had hired the crane plus operator to undertake construction work and rejected B's arguments.

B sought a stay of execution of the adjudicator's decision under Order 47 Rule 1. There was a realistic prospect on the merits that B would succeed before a court or arbitrator. If ordered to pay the sum decided, a temporary position would become final because A was in administrative receivership and would not be able to repay the money if ordered to do so. B also faced liquidity problems and A argued that if the sum decided on by the adjudicator was not paid now, B might fail to pay. A suggested the sum be paid into a separate and protected account, but the Judge agreed with B that payment into court would be more convenient.

B offered to commence proceedings to challenge the adjudicator's decision within a month and to consent to release of the monies paid into court to A if proceedings were not commenced. The Judge accepted this, following Herschell Engineering Ltd v Breen Property Ltd and Rainford House Ltd v Cadogan Ltd. The stay was granted for a period of one month on certain conditions. There would be no stay in respect of the costs and fees as the adjudicator did have jurisdiction to make his decision.

This was a contract for the supply of plant and labour. That the crane came with a driver was not incidental. B had hired the crane plus operator to undertake construction work. The contract was a construction contract within the HGCRA and the adjudicator had jurisdiction. As the party claiming was in receivership, a stay of execution of the judgment was granted, upon conditions of payment into court and prompt commencement of proceedings.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

Click here to read full-screen | Click here to print the case