Multiplex Constructions (UK) Ltd v Mott Macdonald Ltd [2007] EWHC 20 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

This case concerned the breadth of the dispute that had arisen between the parties in relation to a right to access ‘all pertinent records’.  It was unsuccessfully contended by Mott that the adjudication notice was drafted too broadly and that the adjudicator did not have the jurisdiction to decide the dispute that had been referred by the claimant to him.
Although Multiplex succeeded on the jurisdictional point, the court found that there was no basis on the evidence before it to hold that Mott had not complied with the adjudicator’s decision, therefore it refused to grant summary judgment on Multiplex’s claims for specific performance, an injunction and/or damages.

Mr Justice Jackson – Queen’s Bench Division, Technology and Construction Court

Background

This case is one of the many actions arising out of the construction of the Wembley stadium.  Under an agreement entered into between Multiplex and Mott, there was a provision giving Multiplex right of access to “all pertinent records relating to the Services”.  During the Summer of 2006, Multiplex sought to exercise this right.  Although Mott did its best to comply with the request, a dispute arose to the meaning of ‘pertinent records’ (which was not defined).  The dispute was referred by Multiplex to adjudication. 

In due course, the adjudicator reached a decision.  Mott found the adjudicator’s decision confusing and providing little or no guidance as to how compliance might be achieved.  Although Mott sought to comply with the decision, Multiplex took the view that Mott had not done so and brought an action for enforcement of the decision.

Present Proceedings

Two issues fell before the court:

1) Did the adjudicator have the jurisdiction to reach the decision that he did?

2) As a matter of fact, has there been compliance with the adjudicator’s decision?

Issue 1

The first issue concerns the principle that an adjudicator’s jurisdiction is circumscribed by the scope of the pre-existing dispute and that the referring party cannot enlarge the adjudicator’s jurisdiction by drafting an unduly broad or optimistic notice of adjudication.  Although Mott took part in the adjudication and sought to comply with the adjudicator’s decision, Mott contended that the adjudicator did not have jurisdiction because the dispute that had arisen in correspondence between the parties was much narrower than the dispute that was referred to adjudication by Multiplex.  Mott submitted that the adjudicator had reached a decision on the broader dispute in excess of jurisdiction.

Mr Justice Jackson disagreed, finding on the facts that Multiplex had correctly formulated the first dispute in its notice of adjudication and that it was artificial to construe the terms of the dispute as narrowly as suggested by Mott. 

The adjudicator had given careful consideration to the meaning of the clause relating to access to records and formulated his own interpretation of the phrase “all pertinent records relating to the services”.  Therefore, whether the adjudicator was right or wrong was not material to the court.  He was acting within his jurisdiction and therefore the decision is binding on the parties until the dispute is finally resolved by agreement between the parties or arbitration.  The court made a declaration that the adjudicator had acted within his jurisdiction.

Issue 2

The second issue related to whether the documents and electronic material made available to Multiplex by Mott constituted full compliance with the adjudicator’s decision.  Mott had spent 1000 man-hours identifying and retrieving the documents to be disclosed, whereas to-date Multiplex had only spent two days inspecting that material.
Mr Justice Jackson could not, on the evidence before him, decide whether or not there were gaps in the material produced by Mott, therefore he held that there was no basis upon which he could make an order for specific performance.  Accordingly, Multiplex did not succeed on its application for summary judgment on its claim for specific performance.

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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