Fence Gate Ltd v James R Knowles Ltd TCC 25/01 SF102200 [2001]

This summary was provided by CMS Cameron McKenna LLP.

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Disputes relating to payment for appearing as a witness of fact and for assisting at an arbitration are not disputes "in relation to construction contracts" in accordance with s105 of the Act and therefore an adjudicator does not have jurisdiction to act in relation to these.

HHJ Gilliland, Technology and Construction Court

31 May 2001

F appointed J under a contract to provide architectural and surveying services described as "Preliminary Report on defective kitchen floor" and also to provide evidence as a witness of fact as an architect or engineer and assisting in an arbitration as an architect or engineer.

J claimed payment under 4 invoices in respect of services rendered to F under the contract. The matter was referred to adjudication; the adjudication did not involve any invoice for the preliminary report. The adjudicator awarded J payment under 3 of the invoices. F sought a declaration that the adjudicator had no jurisdiction to make any award for those invoices under the contract.

The court looked at the issue of whether the services that J had provided, namely, evidence as a witness of fact and assisting in an arbitration, were matters which fell within the definition of a "construction contract" within s104(2) of the HRCG Act 1996. Under s104(2), the contract must be to do or perform work of the character specified in sub-sections (a) or (b) and the work must be in relation to "construction operations" (defined in s105).

This summary was provided by CMS Cameron McKenna LLP.

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

The judge found that the services provided were not themselves "construction operations". However, this did not mean that these activities were not carried out "in relation to construction operations". The judge found that s104(5) of the Act made it clear that where a contract related to both construction operations and other activities, the contract was to be treated as being severable as between those parts. Part II of the Act (which includes the provisions for adjudication) only applies to the part of the contract which relates to construction operations. It was held that the giving of factual evidence and assisting in an arbitration were not sufficiently related to the construction operations provide for elsewhere in the contract and were therefore not caught by Part II of the Act.

J submitted that the giving of factual evidence as an architect/surveyor was included under s104(2)(a) as "doing architectural, design or surveying work" and the assisting at the arbitration was the provision of advice under s104(2)(b) as the arbitration itself concerned construction operations. The judge disagreed and found that the giving of factual evidence was a different and distinct activity from the performance of the architectural, design or surveying work and not incidental to it. It was also held that disputes in relation to litigation support work were not disputes "in relation to construction operations" under s105 of the Act.

The judge therefore held that the adjudicator did not have jurisdiction to rule upon the entitlement of J for the services rendered by it as a witness of fact or having assisted at an arbitration. F was entitled to the declaration sought.

This summary was provided by CMS Cameron McKenna LLP.

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

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