Ken Griffin & John Tomlinson v Midas Homes Ltd HT-00-252

This summary was provided by CMS Cameron McKenna LLP.

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

A notice of adjudication should define the disputes referred with precision in accordance with the Scheme. A dispute as to payment will not arise until the paying party has had a sufficient opportunity to consider the application for payment and responded. The Court can sever those parts of an award made without jurisdiction from other parts.

HHJ Humphrey LLoyd QC, Technology & Construction Court

21 July 2000

M defended G's application to enforce an adjudicator's decision by summary judgment on the grounds that G did not comply with the provisions of the Scheme for Construction Contracts. M submitted that the dispute had to be defined with precision in the notice of adjudication.

M had determined G's employment under the DOM/1 form of sub-contract, and whether certain invoices were due turned upon the question of whether M was correct in the determination.

In correspondence between solicitors, there were references to a number of unpaid invoices and retention said to be due. G's notice of adjudication referred back to these letters and stated that as no payment had been received a dispute existed which would be referred to adjudication. M objected, on the grounds that it could not tell from the notice which items G intended to refer to the adjudicator. Nevertheless, G proceeded, and M reserved its position on jurisdiction.

The Court noted that the notice had been written by a solicitor and ought not to be given the same latitude as one written without legal advice. The Court looked at the various possibilities, and found it difficult to see how the notice complied with the Scheme.

The Court examined what could have been in dispute as at the date of the notice, and found that some invoices and a general claim for £5,000 were not dispute. These had only recently been seen by M, and it had to be given a sufficient opportunity to deal with them. This meant time to consider it, and also, if appropriate, to discuss it and attempt to resolve it by agreement, for only if that failed would there be a dispute. Adjudication is not a substitute for discussion and negotiation.

Therefore, the notice was invalid to the extent that it could not confer jurisdiction to make a decision about certain invoices. The decision was only enforceable as to two earlier invoices which had not been paid. The Court believed that it was possible to sever these from the remainder of the decision, and grant summary judgment for that sum.

In relation to the adjudicator's fees, the adjudicator ordered M to pay these. M challenged this, on the basis that the adjudicator did not have jurisdiction for the entire dispute. The Court noted that M had realistic prospects of success in defending some (but not all) of the claim for fees, so summary judgment for G was inappropriate. However, the Court awarded M an interim payment of a proportion of the fees under CPR Part 25.7.

A notice of adjudication should define the disputes referred with precision in accordance with the Scheme. A dispute as to payment will not arise until the paying party has had a sufficient opportunity to consider the application for payment and responded. The Court can sever those parts of an award made without jurisdiction from other parts.

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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