Sindall Ltd v Abner Solland [2002] Con LRHT 01/129

This summary was provided by CMS Cameron McKenna LLP.

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Consideration of the timeliness of a contractor's performance for the purposes of deciding whether the employer has the right to determine the contractor's employment for a failure to proceed regularly and diligently must take into account the true completion date. Accordingly, when time for completion is an ingredient of the dispute referred an adjudicator will have jurisdiction to decide the length of any extension of time due.

HHJ Humphrey LLoyd, Technology and Construction Court

15 June 2001

The Claimant, S1 was employed by the Defendant, S2 to carry out renovation works to a property in London. MEA was the contract administrator appointed by S2. The contract for the works specified a completion date, but permitted MEA to grant extensions of time to S1. The contract also provided for termination of S1's employment under it if S1 failed to carry out the works regularly and diligently.

The works were delayed. MEA granted S1 an extension of time. S1 sought a longer extension of time and referred its claim to adjudication. While that adjudication was underway MEA notified S1 that they were not proceeding regularly and diligently with the works. Shortly afterwards S2 purported to terminate S1's contract.

The adjudicator awarded S1 an extension of time. S1 then sought a further extension of time in relation to new matters. Without waiting for any substantive response to the claim S1 referred its second claim to a new adjudication. S1 also claimed that S2 had terminated its employment under the contract wrongfully.

The adjudicator decided that S1's contract had been wrongfully terminated and that S1 was entitled to a further extension of time.

S2 sought to resist enforcement of the award on the grounds that the adjudicator had no jurisdiction to grant a further extension of time as no dispute between the parties had arisen between the parties in relation to S1's further extension of time claim before S1 had commenced the adjudication.

The Judge confirmed that in order for there to be a dispute some point upon which the parties disagreed must have arisen. Here there was no dispute about the further extension of time because MEA had been unable to respond to S1's claim by the time the second adjudication commenced.

However, the Judge went on to say that any judgment as to the timeliness of S1's performance for the purposes of determining whether it was failing to proceed regularly and diligently (and therefore whether S2 had the right to determine S1's employment) had to take into account the true date by which S1 was entitled to complete the works. Since the dispute about the termination of S1's contract required the adjudicator to consider whether S1 were, in fact, entitled to a further extension of time, the adjudicator had jurisdiction in respect of S1's claim for a further extension. The award would be enforced.

Consideration of the timeliness of a contractor's performance for the purposes of deciding whether the employer has the right to determine the contractor's employment for a failure to proceed regularly and diligently must take into account the true completion date. Accordingly, when time for completion is an ingredient of the dispute referred an adjudicator will have jurisdiction to decide the length of any extension of time due.

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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