OSC Building Services v Interior Dimensions Contracts [2009] EWHC 248

This summary was provided by CMS Cameron McKenna LLP.

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


Courts won’t be too pedantic or literal when it comes to deciding whether a Referral Notice goes beyond the bounds of the “dispute” identified in the Notice of Adjudication.

The Hon. Mr Justice Ramsey


Interior Dimensions Contracts (“IDC”), the main contractor on a medical centre project, engaged OSC Building Services (“OSC”) to carry out certain drainage and site access sub-contract works.  As the original sub-contract was for a limited scope of works, it did not contain adjudication provisions or provide for interim payments, but provided for a final account after completion of the works.  The works were completed in July 2007.  A month before, OSC submitted payment application number 10 which was referred to as a draft final account.  There was correspondence back and forth and further information provided over the following months, at the end of which (on 20 May 2008) IDC gave a revised assessment of £283,202.05 (subject to adjustment for certain remedial works). 

This was only partially paid by IDC, so OSC commenced adjudication proceedings, seeking declarations that IDC’s 20 May assessment constituted a certification of OSC’s final account (although OSC did not accept the certified sum), and that OSC was entitled to the £23,000 odd outstanding on that sum, plus a further £21,000 odd to make up the amount OSC considered the works were worth.  The latter figure was adjusted to £24,400 odd in the referral notice.  The adjudicator ordered IDC to pay OSC the sums claimed.  IDC paid only £10,000 – without prejudice to its contention that the decision was invalid and unenforceable on the basis that the Adjudicator had gone beyond the jurisdiction given to him in the notice of adjudication.  OSC commenced enforcement proceedings for summary judgment.


IDC opposed enforcement on the grounds that:

  • The referral purported to broaden the dispute in the notice of adjudication (which was limited to IDC’s failure to issue a withholding notice in respect of the sum certified on 20 May) and the Adjudicator had decided the broadened dispute outside his jurisdiction and
  • The Adjudicator decided a different dispute from the one referred to him: the dispute referred concerned a final account whereas the Adjudicator actually decided the value of an interim payment application


The Court held that the referral notice had not broadened the dispute in the notice of adjudication (which was described as “non payment by IDC to [OSC] in respect of [OSC’s] final account”).  The notice of adjudication and referral had to be read in the context of prior communications between the parties, which included submissions, comments and assessments made before the notice of adjudication was issued.  In that context the reference in the notice of adjudication to non-payment of the final account included non-payment of both the balance of the amount IDC had certified on 20 May and any additional sum to which OSC was entitled in valuation of its final account.

Although not strictly necessary to decide (given the above conclusion), the Court also (provisionally) observed that IDC had not raised any protest in respect of this issue during the adjudication itself, and the absence of any protest would appear to indicate that IDC had accepted the submission of that particular issue to the Adjudicator’s jurisdiction and could not now object to it.

The Court held that the Adjudicator had properly decided the dispute referred to him.  Although the Adjudicator had expressly stated in his decision that the decision concerned an interim payment and not the final value of OSC’s final account, the Court agreed with OSC that the label “interim” or “final account” did not change the substantive dispute, which was, in fact, the last interim application, number 10, which became a draft final account (the final account proper to have been prepared at a later date).  The Adjudicator accordingly did have jurisdiction to make the decision he did and neither of the grounds for resisting enforcement of that decision relied on by IDC were made out.

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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