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England Cases
There are over 300 English cases in our database. This page shows all the cases by default, but you can filter the list by using the search tool above. You can search within the title, key terms, court name, judge's name and case notes fields by inputting a word, or words, or part of a word, or a phrase, into the search box.
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1st February 2017Mailbox (Birmingham) Ltd v Galliford Try Construction Ltd [2017] EWHC 67 (TCC)
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19th January 2017South Coast Construction Ltd v Iverson Road Ltd [2017] EWHC 61 (TCC)
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15th December 2016Octoesse LLP v Trak Special Projects Ltd [2016] EWHC 3180 (TCC)
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25th November 2016Dacy Building Services Ltd v IDN Properties LLP [2016] EWHC 3007 (TCC)
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10th November 2016WES Futures Ltd v Allen Wilson Construction Ltd [2016] EWHC 2863 (TCC)
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13th October 2016Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2016] EWHC B30 (TCC)
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3rd October 2016Amey Wye Valley Ltd v The County of Herefordshire District Council (Rev 1) [2016] EWHC 2368 (TCC)
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22nd September 2016Kilker Projects Ltd v Purton (t/a Richwood Interiors) [2016] EWHC 2616 (TCC)
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13th September 2016Beumer Group UK Ltd v Vinci Construction UK Ltd [2016] EWHC 2283 (TCC)
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1st September 2016Niken Construction Ltd v Trigram Carver Street Ltd [2016] EWHC 2232 (TCC)
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31st August 2016Amey Birmingham Highways Ltd v Birmingham City Council [2016] EWHC 2191 (TCC)
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5th August 2016Paice & Anor v Harding (t/a MJ Harding Contractors) [2016] EWHC B22 (TCC)
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27th July 2016Ground Developments Ltd v FCC Construccion SA & Ors [2016] EWHC 1946 (TCC)
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1st July 2016Goldsworthy & ors (t/a Goldsworthy Builders) v Harrison & Anor [2016] EWHC 1589 (TCC)
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23rd May 2016J Murphy & Sons Ltd v W Mather and Sons Ltd [2016] EWHC 1148 (TCC)
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14th April 2016Stellite Construction Limited v Vascroft Contractors Limited [2016] EWHC 792 (TCC)
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17th March 2016Lulu Construction Limited v Mulalley & Co Limited [2016] EWHC 1852 (TCC)
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15th February 2016RMC Building & Civil Engineering Limited v UK Construction Limited [2016] EWHC 241 (TCC)
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15th February 2016Manor Asset Limited v Demolition Services Limited [2016] EWHC 222 (TCC)
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3rd February 2016Grove Developments Ltd v Balfour Beatty Regional Construction Ltd [2016] EWHC 168 (TCC)
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25th January 2016John Sisk & Son Limited v Duro Felguera UK Limited [2016] EWHC 81 (TCC)
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13th January 2016Brown v Complete Building Solutions Limited [2016] EWCA Civ 1
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21st December 2015RMP Construction Services Ltd v Chalcroft Ltd [2015] EWHC 3737 (TCC)
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18th December 2015Fahstone Ltd v Biesse Group UK Ltd [2015] EWHC 3650 (TCC)
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24th November 2015Severfield (UK) Limited v Duro Felguera UK Limited [2015] EWHC 3352 (TCC)
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23rd October 2015Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2015] EWHC 2915 (TCC)
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22nd October 2015Complete Building Solutions Ltd v Brown [2015] EWCA Civ 1316
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21st October 2015Science and Technology Facilities Council v MW High Tech Projects UK Ltd [2015] EWHC 2889 (TCC)
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13th October 2015Wilson and Sharp Investments Ltd v Harbour View Developments Ltd [2015] EWCA Civ 1030
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16th September 2015Purton (t/a Richwood Interiors) v Kilker Projects Ltd [2015] EWHC 2624 (TCC)
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14th August 2015Henia Investments Inc v Beck Interiors Limited [2015] EWHC 2433 (TCC)
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29th June 2015Caledonian Modular Ltd v Mar City Developments Ltd [2015] EWHC 1855 (TCC)
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25th June 2015Severfield (UK) Limited v Duro Felguera UK Limited [2015] EWHC 2975 (TCC)
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17th June 2015Aspect Contracts (Asbestos) Limited v Higgins Construction Plc [2015] UKSC 38This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARY (1) Where the Scheme for Construction Contracts (England and Wales) Regulations 1998 (the “Scheme”) applies to a construction contract there is an implied term which provides that if a dispute between the parties is referred to adjudication and one party has paid money to the other in compliance with the Adjudicator’s decision, that party remains entitled to have the decision finally determined by legal proceedings and, if or to the extent that the dispute was finally determined in its favour, to have the money repaid to it. (2) In such a scenario the limitation period applying to the paying party’s cause of action arising from this payment is six years from the time of payment (or potentially twelve years in the case...
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22nd May 2015ISG Retail Ltd v Castletech Construction Ltd [2015] EWHC 1443 (TCC)
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20th May 2015Mears Limited v Shoreline Housing Partnership [2015] EWHC 1396 (TCC)
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20th March 2015Khurana v Webster Construction Limited [2015] EWHC 758 (TCC)
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11th March 2015CSK Electrical Contractors Ltd v Kingwood Electrical Services Ltd [2015] EWHC 667 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1)Where a party: (a) fails to pay invoices in accordance with the contract; (b) fails to serve a valid Pay Less Notice within the proper time; and (c) expressly says that the claims were disputed and would be defended when the other party writes to advise that the matter will be referred to adjudication, a dispute has crystallised between the parties. (2) Where the application for the appointment of an adjudicator in error refers to a list of preferred adjudicators and no such list is attached to the application the situation is entirely different to that in Eurocom Ltd v Siemens Plc [2014] EWHC 3710 (TCC) and fraudulent misrepresentation, as found in that case, has not occurred. (3) Adjudication is a rough and ready process because it has...
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11th March 2015Ecovision Systems Limited v Vinci Construction UK Limited [2015] EWHC 587 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Where the express, or if not express, implicit assumption underlying the correspondence between the Adjudicator and the parties was that he had given a direction that the Response was to be served within seven days of the Referral, the fact that the direction was initially given before receipt of the Referral did not invalidate the direction. (2) An Adjudicator has no power to determine what rules of adjudication apply if there is a dispute about those rules and the dispute affects the procedure for appointment, the procedure to be followed or the status of the decision. (3) A notice of adjudication or purported nomination made under a contractual provision or legislative power which, on a correct analysis, does not apply is invalid. Technology...
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10th March 2015Paice & Anor v MJ Harding (t/a MJ Harding Contractors) [2015] EWHC 661 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where an adjudicator had failed to disclose prior conversations with one of the parties about the dispute at hand, a fair-minded observer would conclude that that adjudicator had been biased. It must be shown that the adjudicator had actual knowledge of the content of the conversation in order to prove bias. The other party to the dispute did not waive their right to argue apparent bias simply because they knew a conversation had taken place. BACKGROUND Gary Paice and Kim Springall (the “Claimants”) entered into a contract dated 25 March 2013, incorporating the JCT Intermediate Form 2011 edition, with MJ Harding (the “Defendant”) for the construction of two residential houses in Purley, Surrey. By the end of September...
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10th March 2015Paice & Anor v MJ Harding (t/a MJ Harding Contractors) QBD (TCC)
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27th February 2015Galliford Try Building v Estura Ltd [2015] EWHC 412 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The paying party under a JCT Design and Build form of contract who has (a) failed to provide pay less or payment notices to dispute an interim payment application, and (b) been found at adjudication to owe the sum due, has no right to commence a second adjudication to determine the true valuation of the interim application. For final account payments, however, subsequent adjudication may still be an option. Technology and Construction Court, Mr Justice Edwards-Stuart background Galliford Try Building (“GTB”) was employed by Estura to carry out works at the Salcombe Harbour Hotel, Devon under an amended JCT Design and Build Contract 2011 (the “Contract”). GTB served Interim Application 60, which was one of the last...
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17th February 2015PP Construction Limited v Geoffrey Osborne Limited [2015] EWHC 325 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary A construction contract must include a written provision giving an adjudicator the right to correct a typographical or clerical error (the slip rule). Here the parties' contract provided that they had 14 days to request a correction under the slip rule, with the amended decision being issued within seven days of that request. For a request to be operative and to engage these time periods, the error must be identified with sufficient clarity that a reasonable adjudicator would understand that he had made an error, what the error was, why it was an error and what alteration was necessary. Technology and Construction Court, Mr Justice Coulson BACKGROUND PP Construction Limited (“PP”) and Geoffrey Osborne Limited (“GOL”)...
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3rd February 2015M W High Tech Projects UK Ltd v Haase Environmental Consulting [2015] EWHC 152 (TCC)
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22nd January 2015Marc Gilbard 2009 Settlement Trust (trustees of) v OD Developments and Projects Ltd [2015] EWHC 70 (TCC)
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21st January 2015St Austell Printing Company Ltd v Dawnus Construction Holdings Ltd [2015] EWHC 96 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Cherry-picking parts of a claim or dispute and referring only those parts to adjudication is not only permitted, but it is to be encouraged. Arguing that a dispute has not crystallised is a difficult argument to run as a referring party only needs to show that: (a) a claim had been asserted prior to issuing the adjudication notice, and (b) that claim was not admitted. Inactivity or non-responsiveness for an eight month period may serve as evidence that a claim is not admitted. Technology and Construction Court, Mr Justice Coulson BACKGROUND Dawnus Construction Holdings Limited (“Dawnus”) was employed by St Austell Printing Company Limited (“St A”) to carry out and complete the design and construction of two...
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15th January 2015Rydon Maintenance Limited v Affinity Sutton Housing Limited [2015] EWHC 1306 (TCC)
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17th December 2014Kitt & Anor v The Laundry Building Ltd & Anor [2014] EWHC 4250 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 17.12.2014 SUMMARY An adjudicator’s claim for fees and expenses associated with an adjudication were payable by the defendant as the adjudicator had acted within his jurisdiction and without breaching the rules of natural justice. Technology and Construction Court, Mr Justice Akenhead BACKGROUND In December 2011, The Laundry Building Limited (‘TLB’) engaged Etcetera Construction Services Ltd (‘ETC’) to carry out building works at a building in London. ETC issued its Final Account on 11 February 2013 which TLB disputed, alleging numerous cross claims. On 25 June 2013, ETC served a Notice of Adjudication on TLB. The Notice of Adjudication requested: a decision be made on the final account due to ETC; that TLB should...
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15th December 2014Savoye and Savoye Limited v Spicers Limited [2014] EWHC 4195 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The installation of a conveyer system in a factory building fell within the meaning of “construction operations” in section 105(1) of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) and in particular “form[ed] part of the land”. An Adjudicator therefore had jurisdiction to decide on a dispute in relation to these works. Whether something forms or is to form part of the land is ultimately a question of fact and degree. In coming to a decision on whether or not works under a contract “form part of the land”, one of the criteria for “construction operations” as defined in sections 150(1)(a) to (c), the Court is to have reference to the principles of law relating to...
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12th December 2014Imtech Inviron Limited v Loppingdale Plant Limited [2014] EWHC 4109 (TCC)
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3rd December 2014ISG Construction Ltd v Seevic College [2014] EWHC 4007 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Failure to serve payment notices and pay less notices in response to interim payment applications can result in the acceptance of the amount in the application, irrespective of the correct value, and preclude the paying party from bringing subsequent adjudications for a proper evaluation of the application. Technology and Construction Court, Mr Justice Edwards-Stuart background Seevic College (“Seevic”) engaged ISG Construction Ltd (“ISG”) to carry out works pursuant to a JCT Design and Build Contract 2011 (the “Contract”). The Contract provided for interim payments from Seevic to ISG at monthly intervals, and enabled Seevic to serve payment notices or pay less notices within prescribed timescales...
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3rd December 2014Imtech Inviron Limited v Loppingdale Plant Limited [2014] EWHC 4006 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary When drafting a contract, parties must make their intention to incorporate adjudication provisions from a separate agreement clear. A mere reference in general to the fact that the terms of a separate agreement is to apply is unlikely to incorporate the adjudication provisions of that separate agreement. Additionally, parties should ensure that the scope of the initial referral to the adjudicator, the Adjudication Notice, is defined clearly. BACKGROUND Loppingdale Plant Limited, (“LPL”) and Stansted Airport Ltd (“Stansted”) entered into a Framework Agreement (the “Agreement”) under which LPL was to provide services in accordance with Stansted’s capital projects programme. Under the Agreement, Stansted...
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28th November 2014Rendlesham Estates Plc & Others v Barr Limited [2014] EWHC 3968 (TCC)
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21st November 2014Matthew Harding t/a M J Harding Contractors v Paice [2014] EWHC 3824 (TCC)
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21st November 2014Matthew Harding t/a M J Harding Contractors v Paice [2014] EWHC 3824 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary An Adjudicator’s Decision that a Pay Less Notice was invalid did not preclude the referral of a subsequent dispute which alleged that the amount “properly due” under a Contract was less than the amount awarded in the earlier Decision. Technology and Construction Court, Mr Justice Edwards-Stuart background The Claimant contractor, M J Harding Contractors (“Harding”), was employed by the Defendants, Gary George Leslie Paice and Kim Springall (“Paice and Springall”) under an amended JCT Intermediate Form of Building Contract 2011 dated 25 March 2013 (the “Contract”). The Contract incorporated the adjudication provisions of the Scheme for Construction Contracts (the “Scheme”). There...
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7th November 2014Eurocom Limited v Siemens PLC [2014] EWHC 3710 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary 1. Where the application form requesting the nomination by the RICS of an adjudicator on a construction contract includes a fraudulent misrepresentation this invalidates the process of appointment and consequently the adjudicator appointed does not have jurisdiction. Although the application form states that the RICS will automatically copy the form to the responding party this is merely best practice and its failure to do so does not nullify the nomination. Further, if a party, in breach of contract, subverts the adjudication process in a way which goes to the heart of the appointment then the adjudicator does not have jurisdiction. 2. By considering and deciding claims that were determined...
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24th October 2014A.T Stannard v James Tobutt and Thomas Tobutt [2014] EWHC 3491 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case, the Court (1) held that the issue of whether an adjudication between two entities could be initiated where an alleged novation of the building contract removed the contractual link between those two parties was a jurisdictional issue and not a threshold issue; (2) found that the defendant had waived the right to challenge enforcement of the adjudicator’s award on this ground; (3) refused to adjourn a hearing for summary judgment because, even if the defendant had not waived its right, the evidence filed by the defendant did not provide an evidential basis for such an argument; (4) rejected an application for indemnity costs because there was “just about an arguable point” that there was a threshold as opposed...
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21st October 2014Broughton Brickwork Ltd v F Parkinson Ltd [2014] EWHC 4525 (TCC)
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17th October 2014Roland Horne v Magna Design Building Limited [2014] EWHC 3380 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARYWhen deciding on the jurisdiction of the adjudicator the Notice of Adjudication must be analysed to ascertain what dispute is being referred to adjudication. This should be considered within the context of any previous communications between the parties. In this case it was held that although the adjudicator had jurisdiction to decide whether sums were payable to the referring party, he correctly decided that he did not have jurisdiction to award sums to the responding party as a net sum, as this was not part of the dispute in question. Furthermore, the Court could not decide summarily that a specific amount was due to the responding party on the basis of the Adjudicator’s award as the Adjudicator did not actually find that the cross...
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10th October 2014Peterborough City Council v Enterprise Managed Services Ltd Enterprise Managed Services Ltd [2014] EWHC 3193 (TCC)
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23rd September 2014Hurley Palmer Flatt v Barclays Bank Plc [2014] EWHC 3042 (TCC)This Part 8 claim raises an issue of the extent to which the rights of a third party enforceable under the Contracts (Rights of Third Parties) Act 1999 (“the 1999 Act”) can be determined by adjudication under an express term contained within the agreement between the original contracting parties. The issue requires consideration of the relevant agreement, the 1999 Act and the nature of adjudication proceedings
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31st July 2014Morphuse Framing Solutions Limited v Bracknell Property Limited HT-14-206
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23rd May 2014Lovell Partnerships Ltd v Merton Priory Homes [2014] EWHC 1615 (TCC)
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15th May 2014Parkway Construction Ltd (In Liquidation) v Howard De Walden Estates Ltd [2014] EWHC 1533 (TCC)
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8th April 2014Laker Vent Engineering Ltd v Jacobs E&C Ltd [2014] EWHC 1058 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (1) Provided that it makes its position clear, a party to an adjudication can still rely on a general reservation of jurisdiction after publication of an adjudicator’s decision so that it can apply under the slip rule or make a payment without losing its right to challenge the adjudicator’s decision; (2) the word “site” in section 105(2)(c) of the Housing, Grants, Construction and Regeneration Act 1996 (as amended) (“the Construction Act”) was given a broad meaning so that it applied not only to the immediate area where the works were to be carried out but also to a much larger area owned and occupied by the same party who was to derive benefit from the works. The works were therefore not...
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4th April 2014University of Brighton v Dovehouse Interiors Ltd [2014] EWHC 940 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary In this case, the Court decided that, for the purposes of a conclusive evidence clause in the contract between the parties, adjudication proceedings were ‘commenced’ when the notice of adjudication was given, rather than when a referral notice was given to an adjudicator. The Court also held that as the Notice of Adjudication in question gave substantive and effective notice of the dispute being raised, incorrect identification of the body nominating the adjudicator and identification of and service at an address not specified in the Contract, were not sufficient to invalidate the Notice. Nor was the Notice invalidated by the fact that an adjudicator was subsequently appointed by an incorrect nominating body and had to resign....
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14th February 2014Devon County Council v Celtic Bioenergy Ltd [2014] EWHC 309 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this costs-only judgment, the Court dealt with the parties’ respective liability for costs following an application to the Court for an injunction restraining an adjudication from going ahead and for declarations that the Adjudicator had no jurisdiction. Costs that were considered disproportionate to the importance and complexity of the application were reduced. Furthermore, it was decided that it would not be an abuse of the process for the Claimant to raise at a later date issues not resolved by the Court at the original hearing of the Claimant’s application. However, in view of the Court’s decision to allow the bulk of the adjudication to go ahead, these issues should only be raised if they remained unresolved after...
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11th February 2014Viridis UK Ltd v Mulalley & Company Ltd [2014] EWHC 268 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (a) An adjudicator did not have jurisdiction to decide a dispute which arose under more than one contract and his award could not therefore be enforced. (b) The decisions in Air Design v Deerglen, Camillin v Adelaide Jones and Supablast v Story Rail were authority for the proposition that an adjudicator can decide jurisdictional issues that are coincidentally part of the substantive dispute referred to him only if he is appointed under a contract as to the existence of which there can be no dispute. (c) An adjudicator had not breached the rules of natural justice in failing to deal with a discrete defence raised by the responding party. It was enough that in his award the adjudicator had made it clear that he had considered all of the documents...
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7th February 2014Hillcrest Homes Ltd v Beresford and Curbishley Ltd [2014] EWHC 280 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary An adjudicator’s decision that an employer had made a negligent misstatement to the contractor regarding the novation of the structural engineer’s appointment and that the novation was void was unenforceable because (i) the adjudication clause only provided for “disputes under the contract” to be referred to adjudication, and made no mention of disputes arising “in connection with the contract” and a claim for misrepresentation/negligent misstatement was not a claim arising “under” a contract; (ii) two disputes had been referred to the adjudicator, which was outside the scope of the adjudication clause; and (iii) the adjudicator committed a material breach of the rules of natural justice...
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7th February 2014Walker Construction (UK) Ltd v Quayside Homes Ltd [2014] EWCA Civ 93This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SummaryWhere a party was seeking in legal proceedings to obtain by way of a set-off and counterclaim the repayment of a sum which it had previously paid pursuant to an adjudicator’s award it was incumbent on that party, as the party asserting its right to set off, repayment and/or damages, to plead and adduce evidence to prove its entitlement.Court of Appeal (Civil Division), Lord Justice Laws, Lord Justice McFarlane and Lady Justice Gloster:BackgroundIn December 2004, Walker Construction (UK) Ltd (“Walker”) were engaged by Quayside Homes Ltd (“Quayside”) to carry out drainage and highways works at Quayside’s residential development on land known as ‘Willowbank’. At the conclusion of the works, a dispute arose between...
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24th January 2014Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case the Court granted an injunction restraining an adjudication from proceeding. The adjudicator had been appointed pursuant to a provision that had not been incorporated into the agreement between the parties and the adjudicator therefore had no jurisdiction. Any decision he reached would be a nullity and no purpose would be served by the adjudication continuing. The claimant also argued that the adjudication was unreasonable and oppressive because it had been commenced at a time when complex High Court litigation was proceeding covering the same issues. The Court rejected this submission. Having regard to the statutory right to refer disputes to adjudication at any time, exceptional circumstances were required before...
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23rd January 2014Wales and West Utilities Ltd v PPS Pipeline Systems GmbH [2014] EWHC 54 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (a) In order to determine the scope of the dispute referred to adjudication, the Court must analyse the relevant exchanges between the parties. While it is open to a party to refer only part of a crystallised dispute to adjudication, the Notice of Adjudication must be used primarily to determine the extent to which only part of a claim is being referred. None of the post-notification documentation will alter the scope or ambit of the dispute referred. (b) A decision in an adjudication will not be rendered invalid simply because the decision in a previous adjudication (on which the later decision was based) is unenforceable. Essentially, the only grounds for challenging the enforcement of an adjudicator’s decision are “material breach...
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12th December 2013Alexander & Law Ltd v Coveside (21BPR) Ltd EWHC 3949 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 12.12. 2013 SUMMARY (1) The existence of a Winding-Up Petition in relation to a company in whose favour an adjudication award had been issued is not an automatic defence to an application for summary judgment enforcing the award. (2) The court dealing with the application for summary judgment will not reach a decision in advance of the hearing of the Winding-Up Petition as to whether or not the company is insolvent. (3) In this case the Court found that the financial condition of the Claimant showed that there was a high risk that the Claimant would be unable to repay the amount of the Adjudicator’s award at the time when any repayment would be due to be made, and that the financial condition of the Claimant was not due in any significant part to...
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6th December 2013J G Walker Groundworks Ltd v Priory Homes (East) Ltd [2013] EWHC 3723 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 6.12.2013 SUMMARY (1) It is the Notice of Intention to Refer a Dispute to Adjudication (“Notice of Adjudication”), as opposed to the Referral Notice, that defines the scope of the referral (paragraph 1 of Part I of the Scheme for Construction Contracts). Therefore, in a case in which the Notice of Adjudication mentions alleged agreed variations to the works, the Adjudicator acts within his jurisdiction when he takes into account the value of the additional work carried out by the Claimant even if the Referral Notice claims sums due under “the Contract”, defined as the original contract without the variations. (2) Where a Notice of Adjudication stated that the dispute concerned the sum due from one party to the other and whether...
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29th November 2013Aspect Contracts (Asbestos) Limited v Higgins Construction Plc [2013] EWCA Civ 1541This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary There is an implied term in a contract to which the Scheme for Construction Contracts (England and Wales) Regulations 1998 (the “Scheme”) applies that the unsuccessful party to an adjudication would be entitled to have the dispute finally determined by legal proceedings and, if successful, to recover the money it had paid. The cause of action for the recovery of such payment accrues on the date that the payment was made. In this case, therefore, the unsuccessful party had six years from the date of payment to commence legal proceedings to recover the amount which it had paid. The successful referring party in the adjudication who considers that the adjudicator awarded too little does not benefit from the extended time...
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18th November 2013Westshield Limited v Mr David Whitehouse and Mrs Lisa Whitehouse [2013] 3576 EWHC (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 18.11.2013 SUMMARY The fact that the claimant in an adjudication had entered into a Company Voluntary Arrangement (“CVA”) was not a bar to adjudication as such. Where, however, the CVA provided for an account to be taken of mutual credits and debts as between the parties with only the net amount (if any) admitted to proof in the CVA, the Court would not give summary judgment for the amount of the adjudicator’s award. Technology and Construction Court, Mr Justice Akenhead BACKGROUND In August 2007, Mr and Mrs Whitehouse employed Westshield to carry out substructure works to their house for a contract sum of £262,074.07. The works were due to complete by 18 January 2008 but overran and completed around April 2009. The contract...
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11th November 2013Roe Brickwork Limited v Wates Construction Limited [2013] EWHC 3417 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary An adjudicator had not breached the rules of natural justice or acted outside his jurisdiction when he assessed the value of the claims on a different basis from that argued by the parties, as he had simply calculated the sums owed to the claimant in a ‘slightly different way’. Even if this was wrong, the alleged breach of natural justice was not material as it had no effect on the quantum of the claim that was adverse to the defendant’s position. Technology and Construction Court Mr Justice Edwards-Stuart background Wates Construction Ltd (‘Wates’) was the main contractor for the construction of three blocks of flats on an estate in Tower Hamlets, London. Wates appointed Roe Brickwork Ltd (‘Roe...
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28th October 2013Brims Construction v A2M Development Limited EWHC 3262 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case it was found that a Notice of Adjudication was sufficiently broadly drafted to give the Adjudicator jurisdiction to decide as he did and that in any event the defendant had waived its right to raise a jurisdictional Further, in asking parties to make submissions on a point, a non-legally qualified adjudicator was not impliedly excluding parties from producing further evidence and therefore his conduct could not amount to a material breach of natural justice. Technology and Construction Court, Mr Justice Akenhead background A2M Developments Ltd (“A2M”) contracted with Brims Construction Ltd (“Brims”) in October 2012 for Brims to construct a new care home. The contract was the JCT 2011 form of Intermediate...
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21st October 2013Glendalough Associated SA v Harris Calnan Construction Co Ltd EWHC 3142 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Section 107(5) of the Housing Grants, Construction and Regeneration Act 1996 (as it stood prior to amendments introduced by the Local Democracy Economic Development and Construction Act 2009) (‘the Act’) is engaged where a referral notice does not refer to an agreement clearly in writing and is capable of being construed as an assertion of an agreement made otherwise than in writing — even if the words could also be construed as describing a written agreement. (2) For there to be a valid construction contract within the meaning of section 107 there must be an agreement on at least: the parties, the scope of the work, the price (or a sufficiently certain method of ascertaining the price) and time. Technology and Construction...
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11th October 2013National Museums and Galleries on Merseyside v AEW Architects and Designers Limited EWHC 3025 (TCC)
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4th October 2013Pioneer Cladding v John Graham Construction Limited [2013] EWHC 2954 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary A clause in a sub-contract which provided that any sum awarded by an adjudicator in favour of the sub-contractor must be paid into an escrow account was invalid and unenforceable as being in breach of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”). (2) The same applied to a clause which provided that the adjudicator’s fees were to be borne by the party referring the dispute to adjudication. (3) A stay of execution of a judgment enforcing an adjudicator’s decision was granted where, although the claimant’s financial position was no worse at the date of the judgment than it was at the date when the contract had been made, the claimant had misled the defendant into thinking that they were a...
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2nd October 2013KNN Coburn LLP v GD City Holdings Limited [2013] EWHC 2879 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) In an adjudication under the Scheme for Construction Contracts, the time for the adjudicator to reach his/her decision runs from the date of the referral notice not the date when the supporting documents are received, except where the nature of the dispute cannot be identified without reference to the supporting documents. (2) A responding party who participates without protest in an adjudication in accordance with a timetable that does not comply with the Scheme may lose any right to object that the adjudicator’s decision has not been reached in time. A referring party who so participates may be taken to have consented to the adjudicator having further time to reach his/her decision under the Scheme. (3) On the facts of this case...
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5th September 2013CG Group Ltd v Breyer Group Plc [2013] EWHC 2722 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) The broad scope of the dispute referred to the Adjudicator in this case meant that he had jurisdiction to decide the case on the basis that he did. (2) Where, as in this case, there were extensive issues raised on the written submissions between the parties in the adjudication which provided a variety of permutations upon which the adjudicator had to decide, the Court should not have to carry out a relatively minute examination of all the arguments and contentions put forward by the parties in the adjudication to seek to determine whether the final permutation in the exact form as found to apply by the adjudicator was or was not specifically highlighted by a party. If the permutation as found is covered by the presented arguments, it should...
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29th August 2013Parkwood Leisure Ltd v Laing O'Rourke Wales and West Ltd [2013] EWHC 2665 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Depending upon its wording and the relevant contractual background, a collateral warranty can be a “construction contract” for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) and be subject to the mandatory adjudication regime. Technology and Construction Court, Mr Justice Akenhead Background In April 2006, Orion Land & Leisure (Cardiff) Ltd (“Orion”) engaged Laing O’Rourke Wales & West Ltd (“LOR”) under a standard JCT design and build contract to design and construct a swimming and leisure facility in Cardiff (the “Contract” and the “Works”). The Works were due to be completed by 21 December 2007. In January 2008...
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17th July 2013Thameside Construction Company v Steven & Anor [2013] EWHC 2071This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary When an adjudicator makes an order that one party must pay another, the order must be honoured and no set-off or withholding against payment of that amount should be permitted. However, there are limited exceptions to this rule, namely where: (1) there is a specified contractual right to a set-off which does not conflict with the statutory requirement for immediate enforcement; (2) an adjudicator has simply declared that an amount is due rather than having directed that it should be paid; and (3) an adjudicator’s decision permits further set-off. Technology and Construction Court, Mr Justice Akenhead. Background Mr and Mrs Stevens (“Mr and Mrs S”) entered into a contract with Thameside Construction Company Limited (“Thameside”)...
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12th July 2013ABB Limited v BAM Nuttall Limited [2013] EWHC 1983 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Reliance by an adjudicator on a clause in a contract which had not been referred to or relied upon by either party or raised by the adjudicator before he published his decision, was a material breach of the rules of natural justice. Although courts should be slow to overturn adjudicator’s decisions as it is not the function of the court to be an appellate tribunal for adjudicator’s decisions, the adjudicator’s breach of natural justice was of considerable importance to the outcome of the resolution of the dispute and could well have been decisive. Therefore his decision was invalid and unenforceable. Technology and Construction Court, Mr Justice Akenhead. Background ABB Limited (“ABB”) was a main contractor...
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4th July 2013Bellway Homes Limited v Seymour )Civil Engineering Contractors) Limited [2013] EWHC 1890 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary The Court was asked to resolve the issue of costs between the parties, following the settlement of proceedings at the 11th hour before trial. The proceedings concerned a claim for repayment of a sum of £513,000 in prolongation and increased costs, which had been paid pursuant to an adjudicator’s decision. The claimant finally settled for £146,953 after having paid a sum marginally greater than that to the defendant by way of the release of retention monies which had become payable part way through the proceedings. In deciding which party should be liable for costs, the Court took careful consideration of (i) the terms of the final settlement, (ii) Part 36 and other offers made by the parties, (iii) each party’s approach...
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3rd July 2013FG Skerritt Ltd v Caledonian Building Systems Ltd [2013] EWHC 1898This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) If a claimant in adjudication enforcement proceedings is insolvent, a defendant will normally be entitled to a stay of execution if he has real grounds for a counterclaim that could be raised as a defence by way of equitable set-off in respect of the sum awarded by the Adjudicator. (2) In principle, a bond or guarantee provided by a third party which provides sufficient security for the repayment of the judgment sum is an acceptable way for an insolvent claimant to avoid a stay of execution. In such a case, the defendant is entitled to be provided with security which is equivalent to the security it would have had based on the claimant's financial position at the time when the relevant contract was made. Technology and Construction Court,...
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1st July 2013National Museums and Galleries on Merseyside v AEW Architects and Designers Limited EWHC 2403 (TCC)
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28th June 2013Westshield Civil Engineering Ltd v Buckingham Group Contracting Ltd [2013] EWHC 1825This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Judgement date: 28 June 2013 summary (1) Where an adjudication clause provides that an adjudicator’s decision will be final and binding unless proceedings are issued within a specified period of the decision, it will be sufficient to prevent the decision from becoming final and binding when proceedings are issued by the Court – they do not have to be served as well. (2) Where the parties to a dispute have given an adjudicator permission to determine who are the proper parties to the contract giving rise to the dispute, his decision on that issue will be binding in the same way as any other adjudication decision. (3) Where the financial position of a party seeking to enforce an adjudicator’s decision is the same as it was when...
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23rd May 2013Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWHC 1322
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23rd May 2013True Fix Construction Ltd v Apollo Property Services Group Ltd [2013] EWHC 2524This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) In coming to a decision on whether or not to exercise its discretion to stay execution of a judgment enforcing an adjudicator’s decision, the Court has to consider, first of all, the probable inability of a claimant to be able to repay the judgment sum if ordered to do so at the end of a substantive trial or arbitration hearing leading to a final determination. (2) Where there is a probable inability of the claimant to repay the judgment, if the claimant's financial position is the same or similar to the financial position at the time when the relevant contract was made, or the claimant's financial position is due, either wholly or in part, to the defendant's failure to pay the sums which were awarded in the adjudication, then,...
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9th May 2013Farrelly (M&E) Building Services v Byrne Brothers (Formwork) Ltd [2013] EWHC 1186This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) A party had not waived any natural justice challenge by failing to draw to the Adjudicator’s attention the matters which it later contended amounted to a breach of the rules of natural justice; (2) for there to be a breach of natural justice it must be shown that the Adjudicator has gone off on a “frolic of his own”; the defendant had no real prospect of doing so on the facts of this case; (3) there is no general obligation on a party seeking enforcement of an adjudicator’s decision to disclose to the other party confidential information of its financial and business position so that the other party can consider whether there are grounds for applying for a stay of any judgement enforcing the decision. The fact...
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8th May 2013TSG Building Services Plc v South Anglia Housing Ltd [2013] EWHC 1151This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Although a dispute comprised three primary strands or issues, it nevertheless constituted one dispute and the Adjudicator therefore had jurisdiction to determine it. However, on the application of the responding party, the Court granted a declaration that, on a proper interpretation of the contract, the claimant was not entitled to compensation for the non-recovery of overheads and profit which the Adjudicator had awarded in his decision and the Adjudicator was therefore wrong to order it. But since the Adjudicator had had jurisdiction, his order that the responding party should pay his fees was enforced. Technology and Construction Court, Mr Justice Akenhead Background TSG Building Services Plc (“TSG”) was contracted...
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2nd May 2013Muneer Hamid t/a Hamid Properties v Francis Bradshaw Partnership [2013] EWCA Civ 470
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9th April 2013Willmott Dixon Housing Limited (formerly Inspace Partnerships Limited v Newlon Housing Trust [2013] EWHC 798This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Overview: (1) The referring party had sufficiently complied with an adjudication rule providing for referral of the dispute to the adjudicator within seven days of the notice of adjudication and the adjudicator therefore had jurisdiction. (2)Failure to comply with a requirement of an adjudication rule that the referring party should serve a copy of the referral documents upon the other party at the same time as he served the adjudicator did not mean that the adjudicator had no jurisdiction (3) The fact that an adjudicator was the same adjudicator appointed to deal with multiple adjudications did not have any effect on the adjudicator’s jurisdiction to determine the disputes referred to him in each of those adjudications. Technology and...
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28th February 2013Berry Piling Systems Limited v Sheer Projects Ltd [2013] EWHC 347
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27th February 2013Westfields Construction Limited v Clive Lewis [2013] EWHC 376This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary For the purposes of the residential exception in s.106 of the Housing Grants Construction and Regeneration Act 1996 (the “Act”), whilst the date of the formation of the contract is particularly important in any consideration of any alleged “intention to occupy”, “occupation” is an ongoing process and cannot be tested by reference to a single snapshot in time. Thus the evidence about the position at the date that the contract was made has to be considered in the context of all of the evidence of occupation and intention, both before and after the agreement of the contract. On the facts of this case the defendant had not demonstrated that the residential exception applied. Technology and Construction Court,...
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8th February 2013AMEC Group Limited v Secretary of State for Defence [2013] EWHC 110This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case a party had challenged an adjudicator’s decision by referring the dispute to arbitration under the contract. Dissatisfied with the arbitral tribunal’s decision, it then sought permission to appeal the tribunal’s award on a point of law. Permission was refused as the Court did not consider that s69 of the Arbitration Act 1996 had been fulfilled. Specifically, the dispute in question was not of general public importance and the arbitrator’s decision was not obviously wrong or open to serious doubt. Technology and Construction Court, The Hon Mr Justice Coulson Background Pursuant to a contract dating from March 2000, the Secretary of State for Defence (“SOSD”) engaged AMEC Group Ltd (“AMEC”)...
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4th February 2013Gibson (Banbridge) Limited v Fermanagh District CouncilThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (1) Where a claim has been submitted and discussions ensue between the contractor and the contract administrator, a reasonable time must be allowed for the contract administrator to prepare a response before it can be concluded that a dispute has arisen. In this case, however, a project manager’s assessment should have been made long before the notice of adjudication was issued and the adjudicator therefore had jurisdiction to decide the claim.(2) Breaches of rules of natural justice or procedural fairness will be material where the Adjudicator has failed to afford to a party a reasonable opportunity to respond to the case being made by the other party. In this case, the period allowed by the Adjudicator to the respondent to respond to...
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29th January 2013Arcadis UK Limited v May and Baker Limited (t/a Sanofi) [2013] EWHC 87This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) It is not improper for a party to an adjudication to refer a previous adjudicator’s decision to a later adjudicator or for the later adjudicator to consider it. (2) It may be a breach of the rules of natural justice for an adjudicator to decide a dispute on a basis that was not put forward by either party and without allowing the parties to comment. However, the fact that the adjudicator was persuaded that the correct answer lay between two figures put forward by the parties on an evidential basis and decided to split the difference down the middle could not be considered a breach of natural justice. (3) An adjudicator is not required to refer in his decision to every point raised by each party except in so far as it is necessary...
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13th November 2012Vertase FLI Ltd v Squibb Group Ltd [2012] EWHC 3194This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Where an adjudicator has determined an issue in dispute between the parties, the adjudicator is not then entitled to reconsider the same issue in a separate adjudication. (2) To the extent that the subsequent decision relies upon the adjudicator’s change of mind in relation to an issue he decided in the earlier adjudication, the subsequent decision will be unenforceable. In this case, the issue of whether the main contractor was entitled to liquidated damages from his sub-contractor where he had not incurred an equivalent liability to the Employer arose in two separate adjudications and the adjudicator’s change of mind on the issue in the second adjudication rendered that decision unenforceable. Technology and Construction...
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8th November 2012Lidl UK GmbH v R G Carter Colchester Ltd [2012] EWHC 3138This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary(1) The scope of the dispute referred to an adjudicator is a question of the construction of the documents and the impression they give. (2) Where an additional question, outside the scope of the dispute, is answered by an adjudicator, that part of the decision can be severed provided that the reasoning giving rise to it does not form an integral part of the decision as a whole. In this case, the additional issue addressed by the adjudicator was able to be severed leaving the remainder of the decision enforceable. (3) In order for a breach of natural justice to invalidate a decision it must be sufficiently material to the decision so as to taint the decision as a whole. There was no material breach of natural justice in this case as the...
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23rd October 2012P C Harrington Contractors Ltd v Systech International Limited [2012] EWCA Civ 1371This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where, in an adjudication governed by the Scheme for Construction Contracts (England and Wales) Regulations 1998, an adjudicator’s decision is held to be unenforceable because he has failed to follow the rules of natural justice, the adjudicator will not, subject to any provisions in his contract of engagement which expressly provide to the contrary, be entitled to payment of his fees. Court of Appeal, the Master of the Rolls, Lord Justice Davis and Lord Justice Treacy Background PC Harrington Contractors Limited (“PCH”) was a contractor employed to carry out works at three projects, namely Wembley Stadium, King’s Waterfront, Liverpool and Kingsfield Hospital, Mansfield. It engaged Tyroddy Construction Limited (“Tyroddy”)...
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10th October 2012Greentherm Mechanical Services Limited v KDJ Developments Limited [2012] EWHC 3525 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where the parties’ submissions were not always consistent or easy to read, and ranged over a number of topics relating to the subcontract, the documents relied on as notices and the provisions of the Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009 (the “Act”), the Adjudicator could not be said to have failed either to comply with natural justice or, in this context, to have exceeded his jurisdiction on the basis that there was a clear agreed position between the parties and that he had proceeded in a way contrary to that position. Additionally, to the extent that there was anything in his decision which was inconsistent with a case which...
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8th October 2012Alstom Power Ltd v Somi Impianti SRL [2012] EWHC 2644This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In the case, the Court decided that, SOMI (the Defendant) had to make the written declaration requested by Alstom (the Claimant). This declaration stated that all equipment and materials required for the execution and completion of the subcontracted works; including goods, materials, plant and equipment brought to the site by the Defendant whether owned, leased or hired by Defendant are deemed to be the property of the Claimant. Furthermore, the declaration clarified that the Defendant is not entitled to remove such items from the site. Technology and Construction Court, Queen’s Bench Division, The Hon Mr Justice Akenhead Background Alstom Power Limited (“Alstom”) was engaged as main contractor by RWE Npower plc (“RWE”)...
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28th September 2012Clark Electrical Ltd v JMD Developments (UK) Ltd [2012] EWHC 2627This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary If two people agree to submit a dispute to a third person, they confer jurisdiction on that person to determine the dispute. Whether a party has agreed to confer jurisdiction on such third person is a question of fact. Where, as here, the agreement is said to derive from correspondence, the Court must construe the correspondence in accordance with the ordinary canons of construction to determine whether there has been a submission. In the present case it was impossible to interpret an e-mail sent by the defendant to the Adjudicator as a submission to the jurisdiction of the adjudicator in the full sense. Nor did payment of an appointment fee by the defendant to the adjudicator have that effect. Technology and Construction Court, His Honour...
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28th August 2012WSP CEL Limited v Dalkia Utilities Services Plc [2012] EWHC 2428This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case, the Court decided that the effect of an agreement entered into by the parties setting out a procedure for dealing with a dispute concerning the validity and value of claims incorporated into a final account was to give an adjudicator jurisdiction to make a binding ruling on his own jurisdiction. Even if that was wrong the parties had in their exchanges at the beginning of the adjudication made an ad hoc agreement giving the adjudicator the authority to make a binding decision on his jurisdiction. Further, even if the adjudicator had no authority to determine his own jurisdiction he had in any event plainly been right in holding that he did have jurisdiction to determine the claims in question. Technology and Construction...
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12th July 2012Beck Interiors Ltd v Classic Decorative Finishing Ltd [2012] EWHC 1956 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary A losing party in adjudication will not be permitted to set-off against the award sums allegedly due to it from the winning party, unless: there is an express provision for such a set-off in the contract; or the adjudicator did not order immediate payment but instead gave a declaration as to the proper operation of the contract or ordered that the sum due should be paid but only as part of and pursuant to the existing contract machinery. In this case, there could not in any event be a set-off since, applying the rules of equitable set-off, the cross-claim was not sufficiently closely connected to the claim for the enforcement of the award. Technology and Construction Court, Mr Justice Coulson Background In February 2011 Beck Interiors Limited...
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10th July 2012Squibb Group Limited v Vertase F.L.I. Limited [2012] EWHC 1958 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 10.07.2012 SUMMARY An unsuccessful party to an adjudication will generally not be entitled to avoid the result of the adjudication by relying on a right to set-off any other claims. There are exceptions to this rule: (1) the right to set-off may be provided by the terms of the contract but such wording must be clear and must not offend the requirement for immediate enforcement of the adjudicator’s decision; (2) if the adjudicator’s decision is in the nature of a declaration as to the contractual payment machinery, rather than a one-off award, a respondent may be able to rely on the payment provisions of the contract to issue a withholding notice. In this case, the respondent was not entitled to set-off its claim for liquidated and ascertained...
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4th July 2012Beck Interiors Ltd v UK Flooring Contractors Ltd [2012] EWHC 1808 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgement date: 4.07.2012 SUMMARY Where only one working day (five calendar days spanning the Easter bank holiday weekend) was given for the respondent to consider and respond to a claim, a dispute regarding that claim was held not to have crystallised before the commencement of adjudication proceedings and an adjudicator did not have jurisdiction to decide on it.Where an adjudicator made an award in respect of a claim that was made up essentially of two parts and there was no difficulty in identifying clearly what the adjudicator had decided in relation to each part, the Court severed the award and enforced only that part of it which the adjudicator had jurisdiction to decide.Technology and Construction Court, Mr Justice AkenheadBACKGROUNDBeck...
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1st June 2012WW Gear Construction Ltd v McGee Group Ltd [2012] EWHC 1509 (TCC)
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15th May 2012R and C Electrical Engineers Limited v Shaylor Construction Limited [2012] EWHC 1254 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 15.05.2012 SUMMARY (1) A sub-contractor had failed to show that the certification procedure under the main contract had broken down and could not be revived. Accordingly he was not entitled to immediate payment of the final payment under his sub-contract awarded to him by an adjudicator, where the adjudicator had also held that the amount was only payable following the issue of the Final Certificate under the main contract. (2) The main contractor was not prevented from setting off against the amount awarded any sum that it would have been entitled to set off against the final payment under the final payment clause in the sub-contract.Technology and Construction Court, Edwards-Stuart JBACKGROUNDAshley House PLC (Ashley) entered into a...
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24th April 2012Working Environments Ltd -v- Greencoat Construction Ltd [2012] EWHC 1039 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 24.04.2012 SUMMARY (1) A dispute concerning an interim valuation can be commenced prior to the valuation falling due for payment; (2) the Adjudicator had no jurisdiction to decide on two new items of claim that were only raised 22 days into the adjudication process and (3) the Adjudicator’s decision in respect of these items was severable.Technology and Construction Court, Mr Justice AkenheadBACKGROUNDGreencoat Construction Ltd (“Greencoat”) was the main contractor employed to carry out substantial fitting out works to an office building. Greencoat engaged Working Environments Ltd (“WE”) under a sub-contract to carry out the mechanical services installation for the project. The sub-contract contained...
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17th April 2012J B Leadbitter & Co v Hygrove Holdings Ltd [2012] EWHC 1941 (TCC)
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15th March 2012Walter Lilly & Co Ltd v DMW Developments Ltd [2012] EWHC 649
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21st February 2012Berry Piling Systems Limited v Sheer Projects Limite [2012] EWHC 241 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 21.02.2012 SUMMARY (1) Where a point is made by an Adjudicator in his decision that has not previously been raised with the parties, this will not render his decision unenforceable on grounds of a material breach of natural justice if it does not from part of his reasons for reaching his conclusion and, even if it does, would not have made any material difference to the outcome.(2) When considering a party’s ability to repay a sum for the purposes of an application for a stay of execution of a judgment enforcing an adjudicator’s award, the court should consider that party’s position at the time when the judgment sum might have to be repaid.Technology and Construction Court, Mr Justice Edwards-StuartBACKGROUNDSheer Projects Limited (“Sheer”)...
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26th January 2012Herbosh-Kiere Marine Contractors Limited v Dover Harbour Board [2012] EWHC 84(TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 26.01.2012 SUMMARY An adjudicator had (1) exceeded his jurisdiction by applying a methodology in determining the dispute which formed no part of the dispute referred to him and (2) breached the rules of natural justice, doubtless unwittingly, by deciding the case not only on a basis that had not been advocated by either party but also without giving each party the opportunity to make submissions at least on the method of assessment which the adjudicator considered that he should adopt.Technology and Construction Court, Mr Justice AkenheadBACKGROUNDHerbosh-Kiere Marine Contractors Ltd (“HKM”) entered into a contract with Dover Harbour Board (“DHB”) whereby HKM agreed to provide the equipment, including barges, personnel...
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23rd January 2012NAP Anglia Ltd v Sun-Land Development Co Limited EWHC 51 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (1) There is a fundamental difference between failure to address a substantive defence and failure to address some particular aspect of evidence or element of a party’s submissions. Whilst the former might give rise to a breach of natural justice, the latter would not. (2) Where the successful party to an adjudication applies to the Court to enforce the adjudicator’s award, the fact that litigation is ongoing on the same issues in the county court is not, except in extraordinary circumstances, a reason for staying execution of any summary judgment given by the Court on the application to enforce the adjudicator’s award. (3) In proceedings to enforce an adjudication award, where there was a risk that the claimant would be unable...
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19th January 2012Shepherd Construction Limited v Pinsent Masons LLP [2012] EWHC 43 (TCC)
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21st December 2011Lanes v Galliford Try [2011] EWCA Civ 1617This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (1) The English Court of Appeal held that the claimant in an adjudication may, if it has not served its referral notice, let the adjudication lapse and commence a new adjudication before a different adjudicator. (2) A preliminary view issued by an adjudicator prior to the final decision will not demonstrate bias unless it is apparent to a fair minded observer that the adjudicator has reached a final decision before receiving submissions and evidence from both parties. The Court of Appeal, LJ Richards, LJ Stanley Burton and LJ Jackson The Court of Appeal was asked to consider three appeals from the decisions of the Technology and Construction Court (“TCC”) in relation to the jurisdiction of an adjudicator and enforcement of an...
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21st December 2011Leander Construction Limited v Mulalley & Company Limited [2011] EWHC 3449
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6th December 2011Sprunt Limited v London Borough of Camden [2011] EWHC 3191(TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 6.12.2011 SUMMARY (1) Where a contract is made by a written offer being accepted by conduct, this may constitute a contract in writing for the purposes of Section 107 of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”); (2) non-compliance with s.108 HGCRA will result in contractual dispute resolution provisions being replaced by the Scheme for Construction Contracts (the “Scheme”); and (3) it is inherently unsound and contrary to the policy of the HGCRA for a contract to provide that one of the parties will nominate the adjudicator .Technology and Construction Court, Mr Justice AkenheadBACKGROUNDIn 2001, Sprunt Ltd (“Sprunt”) and the London Borough of Camden (“Camden”) entered into...
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23rd November 2011Partner Projects Limited v Corinthian Nominees Limited [2011] EWHC 2989 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 23.11.2011 SUMMARY (1) In a dispute arising under a building contract based upon the JCT 1998 standard form of contract, Private Without Quantities with Contractor’s Design Portion, an adjudicator was entitled to award a contractor interest on sums which had not been certified by the architect. (2) It was more likely than not that the contractor would not be able to repay the whole of the sum awarded by the adjudicator if ordered to do so but would be able to repay a major part of it. However, the Court would not, in the particular circumstances of this case, order a stay of execution either in whole or in part of its judgment enforcing the award.Technology and Construction Court, Edwards-Stuart JBACKGROUNDIn October 2003 Corinthian Nominees...
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10th November 2011Carillion Construction v Stephen Andrew Smith [2011] EWHC 2910 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 10.11. 2011 SUMMARY Issues that are the same or substantially the same as those decided in a previous adjudication cannot be re-evaluated in a further adjudication. The Court gave guidance as to the factors to be taken into account in considering whether the same or substantially the same dispute has been referred to or resolved in an earlier adjudication.Technology and construction Court, Mr Justice AkenheadBACKGROUNDCarillion Construction Ltd (“Carillion”) was the main contractor employed by The Royal Liverpool and Broadgreen University Hospitals NHS Trust to carry out infrastructure refurbishment at Broadgreen Hospital in Liverpool. In May 2000, Carillion engaged Underground Pipeline Services (the “Sub-Contractor”) to supply,...
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3rd November 2011NAP Anglia Ltd v Sun -Land Development Co Ltd [2011] EWHC 2846 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Judgement date: 3 November 2011(1) There is a fundamental difference between failure to address a substantive defence and failure to address some particular aspect of evidence or element of a party’s submissions. Whilst the former might give rise to a breach of natural justice, the latter would not. (2) Where the successful party to an adjudication applies to the Court to enforce the adjudicator’s award, the fact that litigation is ongoing on the same issues in the county court is not, except in extraordinary circumstances, a reason for staying execution of any summary judgment given by the Court on the application to enforce the adjudicator’s award. (3) In proceedings to enforce an adjudication award, where there was a risk that the...
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27th October 2011Systech International v PC Harrington [2011] EWHC 2722 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 27.10.2011 SUMMARY (1) An Adjudicator whose decision had been found to be unenforceable by reason of a failure to comply with the rules of natural justice was still entitled to his fees.Technology and Construction Court, Akenhead J BACKGROUNDThis case arose from the decision in PC Harrington Contractors Limited v Tyroddy Construction Limited [2011] EWHC 813 (TCC) (for a summary click here). Essentially, Tyroddy Construction Limited (“Tyroddy”) had commenced three adjudications against PC Harrington Contractors Limited (“Harrington”) for the repayment of retention monies in relation to three separate sub-contracts. The same adjudicator was appointed for each adjudication. He was employed by Systech International Limited...
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21st September 2011Hackney Empire Limited v AVIVA Insurance UK Limited [2011] EWHC 2378
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12th September 2011Witney Town Council v Beam Construction [2011] EWHC 2332 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 12.09.2011 SUMMARY (1) Where, on a proper analysis, there are two separate and distinct disputes, only one can be referred to one adjudicator unless the parties agree otherwise. Whether there are one or more disputes involves a consideration of the facts. If there is a clear link between two or more arguably separate claims or assertions that may well point to there being one dispute. (2) In this case, there was in essence only a single dispute, that being the sum of money that the contractor was due under the contract. The various issues which the employer had attempted to classify as single disputes were, in fact, simply threads of the overall dispute. In other words the issues of the extension of time, the loss and expense, the value of the variations...
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8th August 2011PHD Modular Access Services v Seele GmbHDuring an adjudication, the seventh between the parties, PHD sought disclosure and pre-claim disclosure under CPR Part 31. Proceedings had to be anticipated and not just be a possibility. There had to be a real prospect that there would be proceedings between the parties. PHD had been successful in its adjudications and there was no indication that Seele intended to take things further and challenge the decision. It would be odd if PHD as the succesful party were considering proceedings to hold on to those decisions where there was no indication that the unsuccessful party was going to chaslleneg them. The judge was not therefore convinced that there was a real prospect of proceedings and that as a matter of discretion it would not yet be appropriate to issue such an order on disclosure.
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21st July 2011Jerram Falkus v Fenice Investments Inc [2011] EWHC 1935 (TCC)Hybrid CPR Part7/Part8 procedure. Consideration of conclusivity arguments in regard to the JCT D&B Form 2005. Adjudicator's decision after the submission of the Final Account and Final Statement is conclusive if not challenged within the 28 day period stated in Clause 1.9.4
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13th July 2011Hyder Consulting v Carillion Construction [2011] EWHC 1810 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 13 July 2011 SUMMARY (1) It is the decision of the adjudicator (including any findings that are essential components of the decision) that is binding on the parties, not his reasoning. (2) In this case, an adjudicator’s conduct in adopting a methodology for the calculation of his award that was different from those put forward by the parties in their submissions without giving the parties an opportunity to comment on it did not amount to a breach of the rules of natural justice. Both parties had made submissions on the relevant terms of the contract in relation to the calculation and the adjudicator did not rely on any information that the parties had not had an opportunity to consider. Technology and Construction Court, Mr Justice Edwards-Stuart.BACKGROUNDIn...
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6th July 2011Fenice Investments v Jerram Falkus Construction [2011] EWHC 1678 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 6 July 2011 SUMMARY Where a party had paid the fees of an adjudicator which the adjudicator had ordered should be paid by the other party, he was entitled to recover those fees from that other party provided that they were reasonable. On the facts of this case it could not be argued that the fees were not reasonable.Technology and Construction Court, Judge Waksman Q.C.BACKGROUND Fenice Investments Inc (“Fenice”) employed Jerram Falkus Construction Limited (“Jerram”) as a contractor to build five residential properties, using the JCT design and build standard form. The contract provided that the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”) would apply if the parties wished...
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6th July 2011Lanes v Galliford Try [2011] EWHC 1679 (TCC)Following an adjudicator's decision Part 8 proceedings to challenge the decision and enforcement proceedings were heard together. The decision was claimed by Lanes to be a nullity because; 1) Galliford had previously commenced an adjudication on the same point but had had not pursued it before another adjudicator. Lanes said that there was no entitlement to start again; 2) the decision was also claimed to be a product of apparent bias. The adjudicator had issued "Preliminary Views and Findings of Fact" before the Response had been served. Lanes alleged that this document which looked and read like a decision suggested that the adjudicator had already made up his mind. Much of the preliminary document was reproduced in the decision. Held: The implication of a bar against starting the adjudication again was rejected. The apparent bias argument was however succesful...
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17th June 2011Urang v Century Investments & Eclipse Hotels [2011] EWHC 1561 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 17.06.2011 SUMMARY (1) Where a contract provides for payment of a sum certified as due by an independent third party that is a “sum due” under the contract. In the absence of a withholding notice (and provided the certificate is not invalid by reason of error or irregularity in relation to its issue), the sum certified must be paid by the date specified for payment. (2) The need to issue a withholding notice applies only to sums stated as due in interim certificates. There is no requirement to serve a withholding notice in relation to other claims made by a contractor, whether under a different provision in the contract or for damages. (3) However, an error in this respect made by the Adjudicator in this case was an error in law...
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24th May 2011Cain Electrical v Richard Cox t/a Pennine Control Systems [2011] EWHC 2681 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 24 May 2011 SUMMARY (1) The question of the jurisdiction of the Adjudicator was a question for the court. Subject to any argument of election or estoppel (which was not advanced in this case), this question is not determined or circumscribed by what either party may have argued before the Adjudicator. (2) Where, therefore, at the time of the adjudication one of the parties was relying upon terms orally agreed but the parties come to agree, after the Adjudicator has made his decision, that a contract wholly in writing was in force between the parties, the Court will enforce the Adjudicator’s decision.Technology and Construction Court, Judge Havelock-Allan Q.C.BACKGROUNDThe dispute arose from a sub-sub-contract to carry out...
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19th April 2011CRJ Services Limited v Lanstar Limited [2011] EWHC 972 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment Date: 19.04.2011 SUMMARY (1) Where a document relevant to the question of whether an adjudicator has jurisdiction is served on an adjudicator but not the other party to the adjudication, this will not necessarily amount to a material breach of the rules of natural justice. (2) A material breach of the rules of natural justice relating to an adjudicator’s investigation as to his jurisdiction will not necessarily render the overall decision invalid. The investigation as to jurisdiction is separate from the substantive decision, not forming part of the enforceable decision. Generally speaking the substantive decision will only be rendered invalid by a material breach of the rules of natural justice relating to the substantive decision. (3) However,...
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19th April 2011Lanes Group v Galliford Try [2011] EWHC 1035 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Where a contract is terminated or brought to an end by the acceptance of a repudiatory breach, an adjudication clause in the contract will survive. (2) Where a contract is a “construction contract” within the meaning of the Housing Grants, Construction and Regeneration Act 1996 (“the HGCRA”), the adjudication agreement in the contract cannot be repudiated as such. (3) Where, therefore, a party who had commenced an adjudication considered that the adjudicator appointed by the appointing body suffered from apparent bias, the Court would not, on the basis of arguments as to repudiation of the adjudication agreement, restrain that party from deciding not to serve the referral documentation in that adjudication and commencing...
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7th April 2011Lanes v Galliford Try No 2 [2011] EWHC 1234 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary A clause requiring the referring party to send the referral documents to the adjudicator and other side within 2 days of the appointment of the adjudicator meant that the documents had to be dispatched within 2 days, not received within 2 days; (2) The fact that some of the documents were dispatched up to 2 hours after the deadline did not mean that service had been ineffective - this was not a case where it could be said that service of the referral documents was so late as merit impeachment of the adjudication proceedings. Technology and Construction Court, Akenhead J Background The claimant sub-contractor (“Lanes”) was employed by the defendant main contractor (“Galliford”) to carry out certain works relating...
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31st March 2011Durham County Council v Jeremy Kendall (Trading as HLB Architects) [2011] EWHC 780 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY (1) The requirements of s107 of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) that the contract must be in writing might be satisfied even if a contract has been negotiated on a written basis with relatively vestigial terms (for example: “Please go ahead on the basis of your tender”). (2) Acceptance of an offer did not have to be recorded in writing if that acceptance did not contain any of the terms of the contract (e.g. acceptance by conduct). (3) Where a contract contains conditions that have to be fulfilled to bring certain obligations under the contract into effect, the fulfilment of those conditions did not have to be evidenced in writing. (4) Where the Notice of Adjudication and Referral Notice make reference...
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25th March 2011PC Harrington Contractors v Tyroddy Construction [2011] EWHC 813 (TCC)Harrington engaged Tyroddy as a sub-contractor on three projects. This case dealt with one project and in so doing disposed of the other issues on the other two cases. Tyroddy claimed the release of retention. There was no express term dealing with its release under the sub-contract. It went to adjudication seeking the release of that retention. Harrington response in the adjudication was that the entire valuation of Tyroddy's work was presently no more than an 'on account' assessment. Until the final account had been ascertained any amount that was owed to Tyroddy by way of retention had not therefore been established and could not become due. Harrington said that it had established that Tyroddy had been overpaid to the tune of £225,085.97. Within its calculations it included a cross-claim. Harrington said that if, as a matter of taking proper account between...
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18th February 2011Ellis Building Contractors Limited v Vincent Goldstein [2011] EWHC 269 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication Judgment date: 18 February 2011 SUMMARY (1) Without prejudice communications should not be deployed in adjudication proceedings. (2) Although a "without prejudice" letter was deployed in the instant case, its deployment did not give rise to a legitimate fear that the adjudicator might not have been impartial. (3) Where an issue is clearly and properly before an adjudicator, the fact that a party to the adjudication chooses not to address that issue head-on does not entitle that party to challenge the enforceability of the decision on the ground that the adjudicator has, in breach of the rules of natural justice, decided the case on a basis that has not been argued by either side. Technology and Construction Court, Akenhead JBACKGROUND Mr Goldstein employed Ellis...
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26th January 2011C N Associates v Holbeton Ltd [2011] EWHC 43 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARY (a) Where it was clear from all the circumstances that the responding party to an adjudication had reserved it rights with regards to the jurisdiction of the adjudicator, then the reservation would be effective notwithstanding the fact that there was no express reservation in terms. (b) If an adjudicator is given the power by the parties to make a decision as to his own jurisdiction, then in order to be effective his decision on that issue must be set out in terms. Technology and Construction Court, Akenhead J Background In March 2004 the claimant (“CNA”) was engaged by Bright Services Ltd (“BSL”) to act as project manager for works to a substantial domestic property in London pursuant to a contract...
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17th January 2011Redwing Construction v Charles Wishart [2011] EWHC 19 (TCC)
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22nd December 2010Walter Llewellyn & Rok v Excell Brickwork [2010] EWHC 3415 (TCC)
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22nd December 2010Redwing Construction Ltd v Charles Wishart [2010] EWHC 3366 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Where a previous adjudicator has decided an issue outside his jurisdiction, it does not preclude a subsequent adjudicator deciding upon the same point at a later date. (2) Where an adjudicator in a contractual adjudication makes an obvious mistake which is merely clerical or arithmetical in nature then he may be able to make use of an implied term that permits him to correct the mistake provided that he does so within a reasonable time of handing down his decision. Technology and Construction Court, Mr Justice Akenhead Background Redwing Construction Limited (“Redwing”) was employed as a contractor by Mr Wishart to refurbish a domestic property in London, under the standard JCT Prime Cost Building Contract form (2006...
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21st December 2010Irvin v RobertsonPart 8 proceedings to seek a declaration that the parties had entered into a construction contract as defined in section 104 of the Housing Grants, Construction and Regeneration Act 1996 and that such a contract was in writing as defined within section 104 of the Act. Further and in the alternative a declaration was sought that in any event the parties had agreed that any dispute could be referred to adjudication under the Defendant's adjudication procedure. Held: That there was no legal basis for a freestanding agreement to adjudicate and that the parties had not concluded a contract. The parties were not ad idem on essential issues of design responsibility, price and whether or not there was to be a guaranteed maximum price for the project.
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19th October 2010Gibralter Residential Properties Ltd v Gibralcon 2004 SA [2010] EWHC 2595 (TCC)
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7th October 2010All Metal Roofing v Kamm Properties [2010] EWHC 2670 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) Where there was an oral agreement preceding the issuance of a purchase order in relation to a construction contract, this would not preclude the contract from being “in writing” for the purposes of s.107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”) in circumstances where the purchase order contained a term which was different from that agreed orally. (2) Though it was not necessary to decide the case, and therefore not of binding authority, the Court was of the opinion that a reservation of rights with regards to the jurisdiction of an adjudicator would be effective if made within a very short period of time of putting in the first document described as a “Defence”...
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9th September 2010Volker Stevin v Holystone Contracts [2010] EWHC 2344 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Volker Stevin v Holystone Contracts [2010] EWHC 2344 (TCC) Judgment Date: 9 September 2010 summary (a) Where an adjudicator makes enquiries of the parties, and allows new material to be advanced as a result, his decision will not be reached unfairly or outside of jurisdiction provided that all parties see the new material and have an opportunity to comment upon it. (b) A reduction in the sum claimed in an adjudication will not of itself give rise to a valid jurisdictional challenge as it is inevitable that in any complex construction claim the figures will alter as more information becomes available. (c) The mere fact that an adjudicator knew that a without prejudice offer had been made does not of itself give rise to a valid challenge...
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10th August 2010Aedifice Partnership v Ashwin Shah [2010] EWHC 2106 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where there is no agreement between the parties, whether express or implied, as to the power of the adjudicator to decide his own jurisdiction, then an adjudicator’s ruling on that issue will not be determinative and the challenger can defeat enforcement proceedings by showing a respectable case that the adjudicator has reached an erroneous conclusion as to jurisdiction. One principal way of determining that there is no implied agreement is if the party objecting to the jurisdiction of the adjudicator makes a clear reservation. No particular form of words is required to make this reservation. Everything said and done during the course of the adjudication can be analysed to see whether a reservation was intended. Technology...
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30th July 2010Nickleby v Somerfield [2010] EWHC 1976 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where an adjudicator did in fact have jurisdiction and would have come to the conclusion that he had jurisdiction if he had been aware of all the facts, then his decision should be enforced, notwithstanding the fact that the case relied upon by the claimant in enforcement proceedings differed from the case relied upon during the adjudication. Technology and Construction Court, Mr Justice Akenhead Background The claimant (“Nickleby”) was engaged by the defendant (“Somerfield”) to provide management services in relation to the maintenance of a number of supermarkets for three years pursuant to a bespoke contract dated 1 May 2006. A one-year’s extension to the contract was negotiated. There was subsequently...
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29th July 2010Straw/Haymills v Shaftsbury House (Developments) [2010] EWHC 2597 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (a) Where the claiming party to an adjudication enters administration before an adjudicator delivers his decision, this will not of itself mean the adjudicator lacks jurisdiction to make his decision. (b) Where a contract contains a provision to the effect that an adjudicator’s decision will become final and binding unless a notice is given within a specified period of time, the notice provision will not be satisfied by the mere fact that litigation concerning the contractual position is already afoot. (c) Where the decision of an adjudicator has not become final and binding then the principles applicable to the balancing of accounts on insolvency will trump the statutory obligation to comply with the decision and the decision will not...
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13th July 2010Fileturn v Royal Garden Hotel [2010] EWHC 1736 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Where an adjudicator has previously worked closely with the claims consultants representing a party to adjudication, this did not of itself give rise to a triable issue of apparent bias. There was one test for apparent bias and that was whether an informed and fair-minded observer, having considered the relevant facts, would conclude that there was a real possibility that the adjudicator was biased. Technology and Construction Court, Mr Justice Edwards-Stuart background The claimant (“Fileturn”) sought to enforce an adjudicator’s decision in the sum of about £220k (plus VAT) by way of summary judgment against the defendant (“RGH”). The application was resisted on the grounds of apparent bias on the part...
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26th June 2010Enterprise Managed Services v Tony McFadden Utilities [2010] EWHC 1506 (TCC)
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25th June 2010Anglian Water v Laing ORourke Utilities Ltd [2010] EWHC 1529 (TCC)
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25th June 2010Lorraine Lee v Chartered Properties (Building) Ltd [2010] EWHC 1540 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where the Statutory Scheme for Construction Contracts (the “Scheme”) applies to adjudication, the failure of the Adjudicator to deliver his decision as soon as possible after he has reached his decision, in accordance with paragraph 19(3) of the Scheme, will render the decision unenforceable. Technology and Construction Court, Mr Justice Akenhead background The claimant (“Ms Lee”) engaged the defendant contractor (“Chartered”) to carry out refurbishment works at a residential property pursuant to a standard JCT Minor Works Building Contract Form 2005 edition. The contract provided that if a dispute arose and a party wished to refer it to adjudication then the Scheme should apply with the RIBA as...
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21st June 2010W W Gear Construction v McGee Group Ltd [2010] EWHC 1460 (TCC)
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18th June 2010Paul Price v Ian Carter Building Contractors [2010] EWHC 1451 (TCC)
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17th June 2010ROK Building Ltd v Bestwood Carpentry Ltd [2010] EWHC 1409 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary 1) Where a written contract provides for a mechanism for arriving at a price then it is not necessary, for there to be a construction contract in writing for the purposes of s.107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”), that the actual price is expressly recorded in writing. (2) Where there is no agreement as to price whether oral or otherwise but all the other terms of the contract are in writing, there can still be a construction contract in writing within s.107 of the Act, as the Court will determine the price having regard to an implied term as to reasonable rates or prices. (3) However, where a written contract refers to “agreed prices” and these prices have been agreed...
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26th May 2010Traditional Structures v HW Construction Ltd [2010] EWHC 1530 (TCC)
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13th May 2010Cleveland Bridge (UK) Ltd v Whessoe-Volker Stevin Joint Venture [2010] EWHC 1076 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) In order to decide whether a contract was a contract for “construction operations” for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) it was necessary to look at the nature of the work broadly. (2) Where a contract was partly for construction operations and partly for non-construction operations, in determining the part that related to non-construction operations the wording of s.105(2) of the Act should be interpreted narrowly. (3) Where an adjudicator’s decision simultaneously addresses matters relating to construction operations alongside matters relating to non- construction operations, the decision is generally not severable to allow that part which is within the...
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23rd April 2010Pilon Limited v Breyer Group Plc [2010] EWHC 837 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Where there is no agreement between the parties, whether express or implied, as to the binding nature of a adjudicator’s investigation into his own jurisdiction, the results of such an investigation will not temporarily bind the parties pending the final determination of a dispute, and the challenger can defeat any subsequent enforcement proceedings by showing a respectable case that the adjudicator had reached an incorrect conclusion as to jurisdiction. Where an adjudicator erroneously restricts his decision on the basis of a mistake as to his own jurisdiction, this may constitute a breach of the rules of natural justice and, in certain circumstances his decision may accordingly be unenforceable. Where there is only one dispute...
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13th April 2010Yuanda (UK) Co Ltd v WW Gear Construction Ltd [2010] EWHC 720 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Where the adjudication provisions in a contract state that the referring party will pay the legal fees of both parties and the adjudicator, irrespective of whether or not it wins or loses, then the provisions will be struck down and replaced by the whole of Part I of the Scheme for Construction Contracts (the “Scheme”). Where an adjudication clause provides for joinder of the members of the professional team in a multi-party dispute, then the Court will give effect to the provision (and not replace it with the Scheme) by limiting its application to the situation where there is an issue that needs to be resolved against the member of the professional team as well as against the contractor, but will not allow a referral to be...
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18th March 2010(1) William Hare v Shepherd Construction; (2) CR Reynolds (Construction) v Shepherd Construction [2010] EWCA Civ 283
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16th March 2010(1) Mentmore Towers Ltd (2) Good Start Ltd (3) Anglo Swiss Holdings Ltd v Packman Lucas Ltd [2010] EWHC 457 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Where a referral to adjudication is unreasonable or oppressive, the Court will be willing to grant an injunction to prevent any further steps in the adjudication. The principles that the Court will apply when deciding whether or not a referral is oppressive will be the principles that apply to litigation, having due regard to all the facts of the case. Technology and Construction Court, Mr Justice Edwards-Stuart Background The three defendants (collectively “Mentmore”) were Jersey-registered companies, owned by one family trust, formed to redevelop three upmarket properties: two properties in Piccadilly, including the former Naval and Military Club (the “In and Out”), and a stately home in Buckinghamshire. ...
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26th February 2010SG South v Swan Yard (Cirencester) [2010] EWHC 376 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where an adjudicator erroneously finds that he has jurisdiction in relation to a dispute, notwithstanding the fact that there is no written contract between the parties, then exchanges in the adjudication and/or enforcement proceedings where the existence of a contract otherwise than in writing is alleged and not rebutted by the responding party can constitute a written contract and thus serve to establish the necessary jurisdiction. Technology and Construction Court, Mr Justice Coulson Background The claimant contractor (“South”) sought to enforce an adjudicator’s award for £98k by way of summary judgment against the defendant employer (“Swan Yard”). Swan Yard resisted enforcement. ...
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25th February 2010Speymill Contracts v Eric Baskind [2010] EWCA Civ 120This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary Where there is an arguable case that an adjudicator’s decision was procured through fraud, and that the fraud either was not or could not have been referred to during the adjudication, then the decision will not be enforceable. However, there is a distinction between an adjudication taking place in which an allegation of fraud is made (and can be made), and where a fraud only comes to light after an adjudication has taken place. In the latter case, fraud (or a strong allegation of fraud) could provide a basis for refusing to enforce an adjudicator’s decision. In the former, it will not. Court of Appeal Facts The respondent in the Court of Appeal (“Mr Baskind”) engaged the claimant (“Speymill”)...
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24th February 2010AMEC Group v Thames Water Utilities [2010] EWHC 419 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary (a) Where an adjudication relates to disputes arising in connection with works carried out under works packages issued under a Framework Agreement, an adjudicator appointed under the Framework Agreement will have jurisdiction to decide those disputes when the claim and counter-claim refer to its provisions. (b) Where second round submissions are served late in the adjudication process, there is neither an obligation on the adjudicator to consider them in detail, nor a breach of the rules of natural justice if he does not do so. (c) The requirement for an adjudicator to “respond to the issues” does not impose upon an adjudicator an obligation to provide an answer to each and every issue that may be raised in the parties'...
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22nd February 2010Forest Heath District Council v ISG Jackson Limited [2010] EWHC 322 (TCC)
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11th February 2010GPS Marine Contractors v Ringway Infrastructure Services [2010] EWHC 283 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARY (1) A general reservation in relation to the jurisdiction of the adjudicator was sufficient to preserve the respondent’s rights to resist enforcement of the adjudicator’s award on grounds of lack of jurisdiction. (2) Where the parties to an adjudication disagree as to whether or not a compromise or withdrawal of the dispute had taken place before the dispute was referred, then, where the resolution of the disagreement will involve the adducement of oral evidence, an application to enforce the adjudicator’s decision by way of summary judgment will not be granted. (3) An agreement between the parties that an adjudicator had made an error of fact or law in his decision will not mean that the adjudicator’s decision...
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29th January 2010Banner Holdings v Colchester Borough Council [2010] EWHC 139 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARY Provisions of a construction contract that limit the right of the adjudicator to vary or overrule a decision to terminate will fall foul of s.108 of the Housing Grants Construction and Regeneration Act (“the Act”). In such a case, the adjudication provisions of Part I of the Scheme for Construction Contracts (“the Scheme”) will be implied into the contract between the parties. The Scheme will be implied in its entirety, rather than in a piecemeal manner, even if only a few of the adjudication provisions in the contract fail to comply with the Act. Technology and Construction Court, Mr Justice Coulson Background Banner Holdings Ltd (“Banner”) was engaged by Colchester Borough Council (“CBC”)...
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22nd January 2010ROK Building Limited v Celtic Composting Systems [2010] EWHC 66 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case the Court held that trying to argue that an adjudicator had failed to apply the rules of natural justice on the basis that the weight of evidence was such that no reasonable adjudicator could have come to the decision he reached was “an almost pointless exercise” (given the wide jurisdiction given to the adjudicator to make a decision which is wrong in fact and/or law). The Court also held that the slip rule in the CIC Model Adjudication Procedure did not give the adjudicator the power to correct his decision so as to wholly reconsider and re-draft substantive parts of it and effectively change his mind on material points of principle. Technology and Construction Court, Mr Justice Akenhead Background This...
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21st January 2010Supablast v Story Rail Limited [2010] EWHC 56 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary This case addressed issues of jurisdiction in the context of adjudication decision enforcement proceedings where there are or may be disputes arising under two contracts between the parties that are referred to a single adjudicator. The Court held that the defendant had no real prospect of successfully arguing that there were two contracts, or of resisting an argument that it was estopped from so arguing. Further, the adjudicator had had jurisdiction to decide whether there were one or two contracts. Technology and Construction Court, Mr Justice Akenhead Background Story Rail Ltd (“Story”) was engaged by Network Rail in 2008 to carry out refurbishment works on a railway viaduct in St. Helens. Story invited...
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23rd December 2009RWE NPower v Alstom Power [2009] EWHC B40 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (a) Where a notice of adjudication under Part 1 of the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”) purported to refer claims under a single contract to adjudication, the fact that some of the claims actually arose under another contract did not invalidate the notice to refer. (b) In deciding whether the claims referred constituted a single dispute or more than one dispute, a benevolent interpretation of the notice of adjudication should be adopted. Where the elements of a dispute were linked, that was a single dispute. (c) “Without prejudice” privilege attached to the content of the exchanges of a negotiation and not to the fact that the negotiation had taken...
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22nd December 2009C&E Jacques Partnership v Ensign Contractors Limited [2009] EWHC 3383 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY An adjudicator must consider defences properly put forward by a respondent in adjudication. However, it is within an adjudicator's jurisdiction to decide what evidence is admissible and what evidence is helpful in the determination of the dispute referred to that adjudicator. If, within jurisdiction, the adjudicator decides that certain evidence is inadmissible, that will rarely (if ever) amount to a breach of the rules of natural justice. The probable inability of a referring party to repay sums awarded in an adjudicator’s decision following final resolution of the dispute may render it appropriate to grant a stay of execution. It is open to the Court to impose such a stay in relation to part of the judgment sum. On the facts of this case there was a prima...
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9th December 2009Anglo Swiss & Good Start v Packman Limited [2009] EWHC 3212 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary In this case the Court held that to allow the claimant to continue with proceedings which, if successful, would have the effect of reversing in whole or in part a prior adjudication award without having first paid the amount of such an award would seriously undermine the purpose of the Housing Grants, Construction and Regeneration Act 1996 ("the Construction Act"). The Court also stayed the proceedings until the claimants had provided security for the costs of the action. However, the Court declined to order a stay of proceedings pending compliance with the Pre-Action Protocol for Construction and Engineering Disputes because there had already been an exchange of information and a discussion of the issues during the adjudication. Technology...
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7th December 2009Fenice Investments Inc v Jerram Falkus Construction [2009] EWHC 3272 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where there was an irreconcilable conflict between payment provisions in the Employer’s Requirements and the payment clauses of the JCT Terms, the latter prevailed by virtue of the hierarchy clause in the JCT Terms. A losing party who makes a challenge to an adjudicator’s decision by issuing proceedings for a declaration on a point of law must, in the ordinary case, in the meantime pay the sum found by the adjudicator to be due. If that party fails to do so, then, whatever the result of the proceedings for a declaration, it should expect to be penalised for its default by way of both interest and costs. Technology and Construction Court, Mr Justice Coulson Background Fenice Investments Inc (“Fenice”)...
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2nd December 2009Enterprise Managed Services v Tony McFadden Utilities [2009] EWHC 3222This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary In this case the Court held that an adjudicator appointed under the Housing Grants, Construction and Regeneration Act 1996 (“the Construction Act”) did not have jurisdiction to determine the net balance due between a company in liquidation and a creditor pursuant to Rule 4.90 of the Insolvency Rules 1986. The Court also provided guidance on the approach that an adjudicator should take in relation to time limits for the making of his award where a dispute concerns a complex final account claim. Technology and Construction Court, Mr Justice Coulson Background In September 2002 Thames Water Services Ltd, trading as Subterra (“Subterra”), engaged Tony McFadden Ltd (“TML”) to...
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17th November 2009Allied P&L Limited v Paradigm Housing Group Limited [2009] EWHC 2890This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary In this case the Court held that an adjudicator had no jurisdiction to decide that part of a dispute which had not crystallised as at the date of the notice of adjudication. The Court held that such matters were not consequential upon and incidental to the claims which had been asserted and the fact that it must have been obvious that there would be a dispute about such matters was insufficient to enable the claimant to assert that there was a dispute. But the Court nevertheless enforced the adjudicator’s award because the respondent had not made an effective reservation of its position in relation to the jurisdictional challenge that it was now seeking to make. Technology and Construction Court, Mr Justice...
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12th November 2009Coventry Scaffolding v Lancsville Construction [2009] EWHC 2995This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes SUMMARY The Court gave guidance as to the steps that a party seeking to enforce an adjudicator’s decision should take with a view to saving costs and court time where a losing party to an adjudication does not participate in enforcement proceedings. Technology and Construction Court, Mr Justice Akenhead Background Coventry Scaffolding Company (London) Ltd (“Coventry”) was employed as sub-contractor by Lancsville Construction Ltd (“Lancsville”) to provide scaffolding for works undertaken by Lancsville as main contractor. There were disputes between the parties involving delays and entitlements to payment under interim applications. There were two adjudications arising from the disputes, both decided...
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4th November 2009Southern Electric v Mead Realisations [2009] EWHC 2947 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary In this case the Court held that the winning party to an adjudication was entitled to recover costs incurred in chasing the losing party for payment, when the losing party had failed to pay the sums due within the time period ordered by the adjudicator. No agreement had been reached that did not require the payment of such costs and the Court had a broad discretion to make a costs award in these circumstances. Technology and Construction Court, Mr Justice Akenhead Background Southern Electric Contracting Ltd (“Southern Electric”) provided mechanical and electrical installation work for Mead Realisations Ltd (“Mead”) pursuant to a written construction contract. Disputes arose in relation to the contract...
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30th October 2009ROK Building v Celtic Composting Systems [2009] EWHC 2664This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Valid adjudicators’ decisions are to be enforced without set-off or cross claim. The Court must interpret adjudicators’ decisions not only from the words used by the adjudicator but also in the context of the dispute which was referred to adjudication. On the facts of this case, the adjudicator had failed to state when payment of the sums he had found due to the claimant should be made. On a proper interpretation of the decision, however, the adjudicator was clearly calling for an actual payment by the defendant to the claimant, not simply requiring that the amount included in his decision should be the subject of later adjustment in certificates. Technology and Construction Court, Mr Justice Akenhead Background Celtic...
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29th October 2009SG South Limited v Kings Head Cirencester LLP & Corn Hall Arcade [2009] EWHC 2645This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary (1) There is a distinction between an adjudication taking place where an allegation of fraud is raised (or could be raised), and where fraud only comes to light after an adjudication has taken place. In the latter case, fraud (or a strong allegation of fraud) could provide a basis for refusing to enforce an adjudicator’s decision. In the former case it generally will not. (2) A stay of execution on grounds of the alleged impecuniousity of the recovering party will not be made where the financial position of the recovering party was the same or very similar to its financial position at the time the relevant contract was made or where the financial difficulties faced were due in significant part to the paying party’s failure...
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22nd October 2009Ericsson AB v EADS Defence and Security Systems Limited [2009] EWHC 2598
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9th October 2009London Borough of Camden v Makers UK Limited [2009] EWHC 2944
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8th October 2009Geoffrey Osborne v Atkins Rail Ltd [2009] EWHC 2425 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where a final decision is obtained from a court or tribunal, declaring the adjudicator to have made an error, this can, in certain circumstances, be used as a basis for the court not enforcing the adjudicator’s decision. Technology and Construction Court, Mr Justice Edwards-Stuart Facts Atkins Rail Ltd (“ARL”) was employed by Network Rail as the main contractor for the design and construction of signalling works. ARL sub-contracted the civils works to Geoffrey Osborne Ltd (“GOL”). The sub-contract between the parties was subject to the Railtrack PLC Adjudication Rules. ARL and GOL fell into dispute, which was subsequently referred to adjudication. The Adjudicator made a significant error in his decision...
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28th September 2009JPA Design & Build v Sentosa (UK) and Sentosa (UK) and JPA Design & Build [2009] EWHC 2312This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The case concerned two adjudications arising from the same contract. The Court allowed the defendant to set off LDs that it had been awarded in the second adjudication against sums that the claimant had been awarded in the first adjudication. Technology and Construction Court, Mr Justice Coulson Background Sentosa (UK) Ltd (“Sentosa”) engaged JPA Design and Build Limited (“JPA”) to carry out the design and construction of a new medical centre. The contract was in the JCT Design and Build Form, 2005 edition, 2007 revision. The contract provided that Sentosa would make an Advance Payment of £300,000 to JPA “to be reimbursed to the Employer at the time of the agreement of...
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3rd September 2009Mr S Hart t/a DW Hart & Son v Mr Dennis Smith & Mrs Jacqui Smith [2009] EWHC 2223This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In the circumstances of this case the Court did not allow the defendant employer to deduct LDs from a sum that it had been ordered to pay over to the claimant contractor. The defendant had failed to show that its entitlement to LDs followed logically from the decision of the adjudicator. Technology and Construction Court, HHJ Toulmin CMG Background The defendant employers (“ the Smiths”) employed the claimant contractor (“Mr Hart”) to convert a number of barns into dwelling houses pursuant to a JCT Standard Form of Building Contract with Quantities 2005 edition (“the contract”). The parties fell into dispute over payment and Mr Hart referred the matter to adjudication. The Smiths...
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1st September 2009Balfour Beatty Engineering v Shepherd Construction Limited [2009] EWHC 2218This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The case concerned a disputed enforcement of an adjudicator’s decision. The defendant resisted enforcement on the grounds that in serial adjudications, the second adjudicator had decided something that had already been decided by the first. The decision of the second adjudication was cast in colloquial and loose language and the defendant argued this made the decision unintelligible, therefore breaching the rules of natural justice. The defendant also claimed that the adjudicator was biased against its delay analysis expert and failed to give sufficient reasons for his decision. Technology and Construction Court, Mr Justice Akenhead Background Shepherd Construction Limited (“SCL”) was the...
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12th August 2009Estor v Multifit (UK) Limited [2009] EWHC 2108This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary This case concerned the disputed enforcement of an adjudicator’s decision. The Court held that: where a jurisdictional challenge is dependent on fact and evidence, the Court is only permitted to give summary judgment against the defendant if it considers that the defendant “has no real prospect of successfully defending the claim or issue”. However, provided that the adjudicator had jurisdiction under a written construction contract, it did not affect his jurisdiction that he decided that the contract contained more terms than those referred to in the Adjudication or Referral Notices. The Court also held that the adjudicator’s decision regarding responsibility for his fees would have been severable...
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11th August 2009Camilln Denny Architects v Adelaide Jones & Company Limited [2009] EWHC 2110This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY In this case, the court held that the defendant had no real prospect of establishing that its contract with the claimant had been novated so that it had been replaced as a party to the contract by another company. Accordingly its challenge to the adjudicator’s award on the ground that he had no jurisdiction failed. In addition to rejecting the jurisdictional challenge of the losing party, the Court also showed that it will be quick to dismiss attempts to avoid enforcement which are based on nothing more than spurious arguments as to bias and/or natural justice. Technology and Construction Court, Mr Justice Akenhead BACKGROUND Camillin Denny Architects Ltd (“CDA”) were employed by Adelaide Jones & Co. Ltd (“AJ”)...
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5th August 2009Adonis Construction v OKeefe Soil Remediation [2009] EWHC 2047 (TCC)
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4th August 2009Vision Homes v Lansville Construction Ltd [2009] EWHC 2042This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In this case the court held that (a) where an adjudicator had not been appointed in accordance with the provisions of the adjudication clause in the contract, he lacked jurisdiction and his award was unenforceable; (b) where the Scheme for Construction Contracts applied, there could be two adjudications on the same issue at the same time provided that no decision had been reached in either adjudication. The Technology and Construction Court, Mr Justice Christopher Clarke Background Vision Homes Limited (“Vision”) employed Lancsville Construction Ltd (“LCL”) to undertake works in relation to a number of new apartment blocks. LCL and Vision subsequently fell into dispute on a number of matters, including whether or...
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29th July 2009Beck Interiors Limited v Dr Mario Luca Russo [2009] EWHC B32 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where a third party has given a personal guarantee to the performance of a contract, which subsequently becomes subject to adjudication in which he does not personally become bound by the award of the adjudicator, he would not be bound by the adjudicator’s decision in relation to his personal obligation under the guarantee. Technology and Construction Court, Mr Justice Ramsey Background Dr Russo was a 90% shareholder and sole director of a company in the business of providing spa treatments (the “Company”). The Company appointed Beck Interiors Limited (“Beck”) by way of a letter of intent dated 28 October 2008 to carry out works to create new premises for the Company. A payment schedule was appended...
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28th July 2009Workspace Management v YJL London Ltd [2009] EWHC 2017This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case, where adjudication and arbitration proceedings were proceeding concurrently, the Court held that a party was entitled to set-off a decision in its favour in the adjudication against an award of the arbitrator against it in the arbitration. Technology and Construction Court, Mr Justice Coulson Background Workspace Management Limited (“Workspace”) engaged YJL London Limited (“YJL”) to carry out construction works. The contract between the parties incorporated adjudication provisions and an arbitration clause. Disputes were referred to an adjudicator, who found that YJL was liable to pay Workspace substantial sums by way of liquidated damages and previously overpaid loss and expense. YJL...
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24th July 2009Jim Ennis Construction v Premier Asphalt Limited [2009] EWHC 1906This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary An unsuccessful party to an adjudication under the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”) could bring a claim to recover monies paid pursuant to the adjudicator's award notwithstanding the fact that its original counterclaim in the adjudication was statute barred by virtue of the Limitation Act 1980. This was because there was an implied term of the contract that where one party has paid monies to the other party in compliance with the decision of an adjudicator then that party is entitled to have the dispute finally determined by legal proceedings and, if or to the extent that the dispute is finally determined in his favour, to have those monies repaid to him. The cause of action under...
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14th July 2009Windglass Windows v Capital Skyline Construction & London & City Group Holdings [2009] EWHC 2022This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY An adjudicator had not exceeded his jurisdiction by finding that it was a requirement that the grounds for withholding payment set out in a withholding notice issued pursuant to the Housing Grants, Construction and Regeneration Act 1996 (the “Construction Act”) should be valid for that notice to be effective. A defendant in an adjudication cannot rely on a cross-claim which has not been the subject of a withholding notice. Technology and Construction Court, Mr Justice Coulson BACKGROUND Capital Skyline Construction Ltd (“Capital”) engaged Windglass Windows Ltd (“Windglass”) to supply and install glazing. London and City Group Holdings Ltd (“LCGH”) was Capital’s parent company. Capital's...
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8th July 2009Aceramais Holdings Limited v Hadleigh Partnerships Limited [2009] EWHC 1664This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The court held, on the facts of this case, that there was a “contract in writing” for the purposes of s. 107(2) of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”). In relation to an ongoing adjudication, the Court will only make a declaration that a contract is not “in writing” where the case is so clear-cut that it can act quickly and in effect stop the adjudication by way of the declaration. Technology and Construction Court, HHJ Frances Kirkham Background Aceramais Holdings Ltd (“AHL”) entered into discussions with Coventry Timber Frame Company (CTF) to undertake a project whereby AHL would purchase a property and CTF would develop it; the companies were to split...
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25th June 2009William Hare Limited v Shepherd Construction Limited [2009] EWHC 1603
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18th June 2009North Midland Construction v AE & E Lentjes UK Limited [2009] EWHC 1371This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Enabling and civils works for plant at a power station site were not excluded from the definition of “construction operations” by s.105(2)(c)(i) of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”) and the sub-contracts for these works were therefore subject to the provisions of the Act. Technology and Construction Court, Mr Justice Ramsey BackgroundAE & E Lentjes UK Ltd (“AEE”) as the turnkey contractor for works to install flue gas desulphurisation plant at two coal-fired power station subcontracted the necessary enabling works and civils to North Midland Construction Plc (“NMC”). The enabling works included erecting temporary fencing and gates, constructing temporary...
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16th June 2009Primus Building v Pompey Centre & Slidesilver [2009] EWHC 1487This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary What counts as sufficient service of an adjudication notice when a contract requires “personal delivery”? Will the court enforce an adjudicator’s decision that is reached having regard to matters which both the parties have agreed should be ignored? Technology and Construction Court, Mr Justice Coulson Background Pompey employed Primus pursuant to a bespoke contract to provide construction management services in relation to a new build hotel and office complex. Part of the works was cancelled. Primus claimed loss of profit in the sum of £107,253.73 plus VAT and served an adjudication notice on Pompey by post. The contract stated that all notices needed to be served either by “personal...
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7th May 2009Bovis Lend Lease v Cofley Engineering Services [2009] EWHC 1120
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5th May 2009Letchworth Roofing v Sterling Building Company [2009] EWHC 1119This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case the court held that (a) where an adjudicator had not been appointed in accordance with the provisions of the adjudication clause in the contract, he lacked jurisdiction and his award was unenforceable; (b) where the Scheme for Construction Contracts applied, there could be two adjudications on the same issue at the same time provided that no decision had been reached in either adjudication. Technology and Construction Court, Mr Justice Coulson BACKGROUND Sterling Building Company (“Sterling”) employed Letchworth Roofing Company (“Letchworth”) to carry out roofing works pursuant to a subcontract incorporating the JCT Standard Form of Subcontract DOM/1. Following completion of the works, Sterling...
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8th April 2009HS Works Limited v Enterprise Managed Services Limited [2009] EWHC 729 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Where a Court is asked to deal simultaneously with two adjudication enforcements between the same parties which decide different things but which might or do impact on each other, the court, may subject to specified steps, set off one decision against another. Technology and Construction Court, Mr Justice Akenhead BACKGROUND HS Works Limited (“HSW”) is a civil engineering contractor within the utilities sector and was employed by Enterprise Managed Services Limited (“Enterprise”), a utilities contractor, as a sub-contractor to assist with clean water, network repair and maintenance services for Thames Water. The sub-contract works included the repair, reinstatement and re-surfacing of highways in and around...
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27th March 2009The Mayor and Burgess of the London Borough of Camden v Makers UK Limited [2009] EWHC 605This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY Courts have a discretion to impose conditions when setting aside a default judgment, but will rarely – if ever – exercise that discretion so as to prevent parties from pursuing their statutory right under the Housing Grants, Construction and Regeneration Act 1996 (“the Construction Act”) to adjudicate “at any time”. Technology and Construction Court, Mr Justice Akenhead BACKGROUND The London Borough of Camden (“Camden”) engaged Makers UK Ltd (“Makers”) to carry out refurbishment works to the value of £4.3m. Disputes arose concerning variations and delays. Camden alleged that Makers were in default of their contractual obligation to proceed regularly and diligently and purported to...
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12th March 2009Mr & Mrs C Shaw v Massey Foundations & Pilings Ltd [2009] EWHC 493This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case, the Court held that a party who had been ordered to pay a sum of money by an adjudicator was not entitled to stay court proceedings which had been brought to enforce the adjudicator’s decision in order to commence an arbitration. The Court also held that the contract in this case was not exempt from statutory adjudication on the grounds that it had been made with a “residential occupier” under s 106 of the Housing Grants, Construction and Regeneration Act 1996 (“the Act”), because, at the time the contract was made, the defendants neither occupied, nor intended to occupy, the property where the works were to be carried out as their residence. Mr Justice Coulson, Technology and Construction...
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24th February 2009Linnett v Halliwells LLP [2009] EWHC 319This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes [2009] EWHC 319Declining to accept the Adjudicator’s terms of engagement and challenging his jurisdiction will not usually save a party from contractual liability for the Adjudicator’s fees where that party still participates in the proceedings notwithstanding that it does so on a without prejudice basis. Where there has been a failure to comply with the detailed procedural aspects of the JCT 1998 adjudication clause, the Court should be slow to find that this renders the relevant part of the process a nullity so as to deprive the Adjudicator of jurisdiction. Where there is an express adjudication provision which complies with s.108 of the Housing Grants, Construction and Regeneration Act 1996 (“the Construction Act”),...
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4th February 2009Mead General Building v Dartmoor Properties [2009] EWHC 200This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary In this case the court held that (a) where an adjudicator had not been appointed in accordance with the provisions of the adjudication clause in the contract, he lacked jurisdiction and his award was unenforceable; (b) where the Scheme for Construction Contracts applied, there could be two adjudications on the same issue at the same time provided that no decision had been reached in either adjudication. Technology and Construction Court, Mr Justice Akenhead BACKGROUND Dartmoor engaged Mead to carry out a £1.6m development in Devon. Mead commenced an adjudication in which it was awarded about £350,000, and sought summary judgment under CPR Part 24 to enforce the Adjudicator’s decision. Dartmoor raised neither...
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4th February 2009F.W.Cook Ltd v Shimizu (UK) Ltd [2000] HT 99-289This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If a referral notice does not seek payment of a particular sum of money, then the adjudicator's findings should be implemented by considering the decision in the context of the contract and pre-existing payment notices to ascertain the amount due. HHJ Humphrey LLoyd QC, Technology & Construction Court 4 February 2000 The dispute arose out of a contract for mechanical works. C served a notice of referral to adjudication and sought the "reinstatement" of one claim against S and the "removal" of three items that S had charged to its account. The notice did not expressly seek payment of any sum. The adjudicator gave a ruling on the four issues, but did not identify any money as payable. The parties could not agree how the adjudicator's findings...
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31st January 2009YCMS Ltd (t/a Young Construction Management Services) v Grabiner & Anor [2009] EWHC 127 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY In this case the Court held that a revision that an Adjudicator had purported to make to his award under the “slip rule” was invalid as the Adjudicator had not merely corrected a “patent error” but had in fact had second thoughts as to the basis for calculating the award. The Court also decided that the defendants should not be permitted to set-off against the award the amount of a subsequent award in their favour that had not yet fallen due for payment. Technology and Construction Court, Mr Justice Akenhead BACKGROUND The Grabiners employed YCMS to carry out extensive works to their London home. Interim Certificates were issued regularly by the Architect. In June 2007, the Architect signed and issued 2...
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30th January 2009Thermal Energy Construction v AE&E Lentjes UK [2009] EWHC 408This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Although adjudicators’ decisions are only temporarily binding, it is important that, where reasons are required and given, they enable the parties to understand what has been decided and why. His Honour Judge Stephen Davies, Queen’s Bench Division, Manchester District Registry BACKGROUND Thermal was engaged by AE&E under a sub-contract to provide mechanical erection services in the context of desulphurisation works at a power station. A dispute arose over AE&E’s valuation and certification of Thermal’s claims for payment under the sub-contract, which Thermal referred to adjudication under the TeCSA Rules, requesting that the Adjudicator provide reasons for his decision. The TeCSA Rules required...
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28th January 2009Bovis Lend Lease v The Trustees of the London Clinic [2009] EWHC 64This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Absent fraud, it will be “a rare case, if ever” that an Adjudicator will be found to have materially breached natural justice by not giving a party a reasonable opportunity to present its case where that party has not raised the issue during the adjudication. The Hon. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND The Trustees of the London Clinic (“the Clinic”) entered into a redevelopment contract with Bovis Lend Lease (“Bovis”). Practical completion was achieved in August 2006, 58 weeks late. Over the course of the works and following practical completion, Bovis made numerous applications for extensions of time and prolongation costs but the...
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27th January 2009Able Construction (UK) Ltd v Forest Property Development Ltd [2009] EWHC 159This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary It is not generally acceptable for parties to seek to avoid enforcement of an adjudicator’s decision by raising an issue which requires oral evidence in the hope that the enforcement proceedings will then have to be adjourned. The Court awarded the Claimant interest at 8% over base rate and costs on an indemnity basis. The Hon. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND Forest engaged Able to carry out a residential development in Middlesex. A dispute was referred to an Adjudicator who decided on 24 September 2008 that Able was entitled to £130,927.17 plus VAT plus interest, approximately £160,000 in total. On 9 October the parties agreed a written...
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21st January 2009Dalkia Energy and Technical Services v Bell Group UK Ltd [2009] EWHC 73This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Although declaratory relief will “rarely” be granted during an ongoing adjudication, there are situations where it will be appropriate, such as the determination of which contract conditions apply. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court BACKGROUND Dalkia subcontracted works to Bell. Bell referred a dispute over payment to adjudication and an adjudicator was appointed using the procedure set out in Bell’s standard terms and conditions. Dalkia argued that the standard terms and conditions were not incorporated into the contract and that in any event they did not comply with s108 of the Housing Grants, Construction and Regeneration Act 1996 (“the 1996 Act”). ...
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8th January 2009OSC Building Services v Interior Dimensions Contracts [2009] EWHC 248This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary 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 BACKGROUND 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...
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19th December 2008Euro Construction Scaffolding Ltd v SLLB Construction Ltd [2008] EWHC 3160 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Courts and adjudicators alike are encouraged to examine critically assertions that adjudicators lack jurisdiction. In this case the defendant argued that the adjudicator had had no jurisdiction because the contract was not a contract in writing for the purposes of the Housing Grants, Construction and Regeneration Act 1996. The court held that the defendant had no real prospect of establishing this and accordingly enforced the adjudicator’s award. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND In May 2006, SLLB engaged Euro under a written contract to provide scaffolding to a house (“the May Contract”). SLLB paid for these works in September 2007. ...
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11th December 2008Walter Lilly & Co Ltd v DMW Developments Ltd [2008] EWHC 3139 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary Either party may seek a final determination of the issues decided by an adjudicator (whose decision is temporarily binding) in the TCC. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court BACKGROUND DMW engaged Walter Lilly to build a property in Earl’s Court, several rooms of which were required under the contract to be fitted with American Black Walnut natural timber veneer (“the veneer”). A dispute arose when the veneer faded, leading DMW to withhold approximately £90,000 from Walter Lilly. The dispute was referred to adjudication, and the Adjudicator concluded that the fading was caused by natural light and constituted a breach of contract by Walter Lilly. ...
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11th December 2008Gipping Construction Ltd v Eaves Ltd [2008] EWHC 3134 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary This case shows that failure by an adjudicator to conduct a site inspection will not necessarily give rise to a breach of natural justice, and sets out some general principles relevant to applications for an extension of time to pay a judgment sum and the meaning of indemnity costs when seeking summary enforcement of an adjudicator’s decision. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND Eaves Limited (“Eaves”) employed Gipping Construction Limited (“Gipping”) to build two timber-framed bungalows in Ipswich. Disputes arose over whether the two bungalows were complete and free from defects and whether, and if so, what, sums were due to Gipping. ...
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10th December 2008Air Design (Kent) Ltd v Deerglen (Jersey) Ltd [2008] EWHC 3047 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary There may be cases where the substance of the dispute which the Adjudicator has been asked to decide overlaps with the question whether the Adjudicator has jurisdiction, such that in deciding the substance of the dispute referred to him, the Adjudicator necessarily has to decide whether he has jurisdiction. In such cases, provided that on analysis there exists a dispute capable of being referred to adjudication, his jurisdiction as decided by him cannot be challenged merely because it transpires that the Adjudicator has answered that necessary question incorrectly: his conclusion on the question and thus on his own jurisdiction will be upheld. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND Deerglen...
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9th December 2008Westwood Structural Services Ltd v Blyth Wood Park Management Company Ltd [2008] EWHC 3138 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The Court has suggested that an employer may not be able to avoid payment under an adjudicator’s award on the basis of a later determination of contract. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court BACKGROUND Blyth Wood Park Management Company (“Blyth Wood”) engaged Westwood Structural Services (“WSS”) under a JCT Minor Works Form 1998 (“the contract”) to carry out works at Blyth Wood Park. Clause D7 of the contract required the parties to comply with a decision of the Adjudicator. Clause 7.2.3 provided that upon determination of the contract Blyth Wood would not be bound to make any further payment that may be due under the contract until...
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8th December 2008PT Building v ROK Build Ltd [2008] EWHC 3434This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary A party who has elected to treat an adjudicator’s decision as binding for one purpose cannot at the same time claim that it is invalid for another purpose. Mr Justice Ramsey, Queen’s Bench Division, Technology and Construction Court BACKGROUND ROK engaged PTB to carry out works in Council-owned properties in Harlow. PTB claimed ROK had not paid, or paid late, certain payment applications and issued a notice of adjudication. ROK contended that there was no dispute and said that PTB’s works were over-valued, so PTB issued a second notice of adjudication. An adjudicator was appointed, to whom PTB issued a referral notice. ROK challenged the appointment, claiming there was no dispute and the referral...
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5th December 2008Quartzelec Ltd v Honeywell Control Systems [2008 EWHC 3315This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary The respondent in an adjudication is entitled to raise any defence open to him which relates to the claim, and failure by the adjudicator to consider it will amount to a significant jurisdictional error and a breach of natural justice. His Honour Judge Stephen Davies, Queen’s Bench Division, Manchester District Registry, Technology and Construction Court BACKGROUND Honeywell, a sub-subcontractor on the Liverpool Paradise Street development, engaged Quartzelec as sub-sub-subcontractor to design, supply, install, document and commission communication systems. The scope of Quartzelec’s works was varied and Quartzelec sought interim payment (in several consecutive applications) for the revised work scope and associated prolongation...
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4th December 2008Balfour Beatty Construction Northern Ltd v Modus Corovest (Blackpool) Ltd [2008] EWHC 3029 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary This case confirms that courts will do their utmost to uphold the objective that underlies the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”) by enforcing an adjudicator’s decision unless it is plain that the question that the adjudicator has decided is not the question referred to him or the manner in which he has gone about his task is obviously unfair. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court BACKGROUND Modus employed Balfour Beatty to carry out design and construction works to a shopping centre. During the course of the project, a dispute arose over whether certain work carried out by Balfour Beatty constituted a Change entitling it to additional payment...
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17th November 2008Allen Wilson Joinery Ltd v Privetgrange Construction Ltd [2008] EWHC 2802 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes summary All express terms of the contract must be recorded in writing for the contract to come within Part II of the Housing Grants, Construction and Regeneration Act 1996 (“HGCRA”), not just those material to the issues under adjudication. However, implied terms will not cause an otherwise written contract to fall outside the operation of Part II. Mr Justice Akenhead, Queen’s Bench Division, Technology and Construction Court BACKGROUND Privetgrange Construction (“PC”), the main contractor in a development known as Silverwood, engaged Allen Wilson Joinery (“AWJ”) as a sub-contractor to manufacture, deliver and install three flights of stairs. The parties first made contact in May 2007 following...
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31st October 2008Liberty Mercian v Dean & Dyball Construction Ltd [2008] EWHC 2617 (TCC)
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17th October 2008Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd [2008] EWHC 2454 (TCC)
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25th September 2008Birmingham City Council v Paddison Construction Ltd [2008] EWHC 2254 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator is entitled to make no decision on an issue which is too complex to decide fairly and impartially – but if the adjudicator does make a decision, there’s no second bite of the same cherry.Her Honour Judge Frances Kirkham – Queen’s Bench Division, Technology and Construction Court Background Birmingham City Council (“BCC”) engaged Paddison Construction Limited (“Paddison”) to undertake construction work for a new community and training centre. Practical completion was delayed, and a dispute arose as to which of the parties was responsible for the delay and its financial consequences. Paddison referred the dispute to adjudication, claiming an extension of time up to the date of practical...
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17th September 2008Benfield Construction Ltd v Trudson (Hatton) Ltd [2008] EWHC 2333 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator has no jurisdiction where the same or substantially the same dispute has previously been the subject of an adjudicator’s decision. If the underlying dispute is the same in successive adjudications then an adjudicator will not have jurisdiction, even if the legal issues which are raised in those successive adjudications differ from those raised in the original adjudication. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court Background Trudson engaged Benfield to carry out works pursuant to a JCT Form of Contract (With Contractor’s Design) 1998 edition, which provided for liquidated damages in the event that the date for completion was not met. The works were seriously delayed...
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16th September 2008Vitpol Building Service v Samen [2008] EWHC 2283 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The TCC cannot deprive a claimant of its potential right to adjudication by refusing to determine the existence and/or terms of a contract simply because a pre-action protocol process dealing with this and other issues has already been substantially completed. Mr Justice Coulson, Queen’s Bench Division, Technology and Construction Court Background Michael Samen invited tenders for building works to convert a London hotel back to its original status of family home. Vitpol’s tender was successful and works were commenced in July 2006 before a contract had been agreed. Contractual negotiations continued as the works progressed. Disputes arose between the parties as to payment and defects claims. ...
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15th August 2008VGC Construction Ltd v Jackson Civil Engineering Ltd [2008] EWHC 2082 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Provided it is sufficiently clear when it is disputed, it may not be necessary to provide a full explanation of a sum claimed in an application for payment. Subsequent details of the claim can be introduced during the course of an adjudication in response to a criticism that the claim is unparticularised without creating a new dispute. Clear words and dealings must be adopted if a right to challenge jurisdiction is to be reserved. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction Court Background Jackson Civil Engineering Limited (“Jackson”) employed VGC Construction Limited (“VGC”) to carry out construction work on the M3 motorway. Completion of the work was delayed.VGC issued an application...
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15th August 2008CJP Builders Ltd v William Verry Ltd [2008] EWHC 2025 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes When an adjudicator makes an error in his decision it is usually enforced by the courts irrespective of the error. However, where that error leads to a breach of the rules of natural justice by that adjudicator it may be challenged. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction Court Background The parties entered into a sub-contract, under which the claimants were to carry out brickwork, blockwork and stonework as part of a construction project. The defendants failed to pay an interim payment application by the claimants and the claimants duly started adjudication proceedings. The defendant did not serve a Response to the claimant’s Referral Notice within the requisite time stated in...
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25th July 2008Makers UK Ltd v London Borough of Camden [2008] EWHC 1836 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Unilateral contact with an adjudicator before his appointment may not give rise to actual or apparent bias. However, care should be taken in any contact with adjudicators and parties should avoid circumstances which might lead to the challenge of an adjudicator’s decision on those grounds. This case issues guidance for contact between parties and those resolving disputes between them. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction Court Background The parties entered into a written contract for works. The contract between the parties set out adjudication provisions including a provision stating that the adjudicator of any dispute would be appointed by RIBA. A dispute arose...
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19th May 2008Owen Pell Limited v Bindi (London) Limited [2008] EWHC 1420 (TCC)
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9th May 2008Cubitt Building & Interiors Ltd v Richardson Roofing (Industrial) Ltd [2008] EWHC 1020 (TCC)Provisions seeking to make adjudication the first point of call for parties seeking to resolve a dispute should have clear wording to that effect. It is clear from this case that care should be taken when drafting dispute resolution clauses, particularly where different methods of dispute resolution are being offered. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction Court Background The claimant engaged the defendant as roofing sub-contractors at a building site. The claimant claimed, after completion of the works, that the defendant was guilty of culpable delay which gave rise to the defendant seeking an extension of time. A question of whether certain terms and conditions were incorporated into the sub-contract was referred to adjudication, but was then aborted. A second adjudication was started by the defendant addressing...
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29th April 2008Avoncroft Construction Ltd v Sharba Homes (CN) Ltd [2008] EWHC 933 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator makes a decision against a party to whom liquidated damages are due, there may not be a right to set-off open to that party. For there to be a right to set-off the parties should raise that issue as part of the adjudication to avoid it falling outside the adjudicator’s jurisdiction. Her Honour Judge Kirkham – Queen’s Bench Division, Technology and Construction Court Background The claimant and defendant were parties to a building contract (which was terminated on 14 September 2007), in relation to which a dispute arose. This dispute was referred to adjudication. The adjudicator decided that money was owing to the claimant. The claimant sought to enforce the decision and also applied...
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21st April 2008T & T Fabrications Ltd v Hubbard Architectural Metal Work Ltd [2008] EWHC B7 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes On the facts of this case, it was unclear on the evidence before the Court as to whether all the terms of the contract were in writing for the purposes of section 107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”) and hence whether the adjudicator had jurisdiction. It followed that the adjudicator’s decision would not be summarily enforced. Technology and Construction Court, HHJ Wilcox Background T&T Fabrications (“T&T”), a small family firm, entered into a contract with Hubbard Architectural Metal Work Limited (“Hubbard”) relating to the receipt and installation of a number of atrium bridges, staircases and other metalwork. Hubbard disputed three invoices...
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14th April 2008BSF Consulting Engineers Ltd v MacDonald Crosbie [2008] All ER (D) 171 (Apr)
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2nd April 2008Tyco Fire & Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd [2008] EWCA Civ 286
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27th March 2008Enterprise Managed Services Ltd v East Midland Contracting Ltd [2008] EWHC 727 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A provision preventing any action or proceeding other than adjudication before the project was certified practically complete was supposedly breached when one party brought court proceedings to reverse the decision of an adjudicator. As well as again showing its aim to give effect to what it sees as the intentions of the parties to an inadequate agreement, the court showed that the failure to provide certificates in line with an agreement need not prevent the satisfaction of an obligation for certification and so did not prevent the proceedings to attempt to reverse the adjudicator’s decision. His Honour Judge Stephen Davies – Queen’s Bench Division, Technology and Construction Court Background The claimant issued proceedings...
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14th March 2008London Underground Ltd v Metronet Rail BCV Ltd [2008] EWHC 502 (TCC)
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13th March 2008Edenbooth Ltd v Cre8 Developments Ltd [2008] EWHC 570 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The courts recognise that there is pressure on parties to a dispute to produce submissions in adjudications within short spaces of time, however, this is necessary for an Adjudicator to give a quick decision, and so is not an adequate basis to challenge an adjudication decision on the grounds of unfairness. Mr Justice Coulson – Queen’s Bench Division, Technology and Construction Court Background The defendant, a development company, engaged the claimant to carry out groundworks and drainage works to two properties owned by two of the defendant’s directors. This was duly done. A dispute arose in relation to whether further payment for the works was required and the claimant referred the dispute to adjudication. ...
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27th February 2008Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator’s decision simultaneously addresses two or more issues, one of which has been arrived at within jurisdiction and the rules of natural justice, and one or more of which has been arrived at outside jurisdiction and/or the rules of natural justice, the court will in certain circumstances allow the decision to be severed to allow a part of it to be enforced. Technology and Construction Court, Akenhead J Background The defendant (“Urvasco”) engaged the claimant (“Cantillon”) to carry out demolition, piling and other works pursuant to a JCT Standard Form of Contract Private Without Quantities 1998 edition. Disputes arose between the parties concerning Cantillon’s claimed entitlement to an...
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6th February 2008Multiplex Construction Ltd v Cleveland Bridge Ltd No1 [2008] EWCA Civ 133
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19th January 2008Dorchester Hotel Ltd v Vivid Interiors Ltd [2009] EWHC 70This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication SUMMARY The TCC has jurisdiction to intervene in ongoing adjudications to prevent breaches of natural justice, but should use this jurisdiction extremely sparingly and only in clear-cut cases. The mere use of “ambush” tactics will not justify such intervention. Technology and Construction Court, Mr Justice Coulson BACKGROUND The Dorchester engaged Vivid to refurbish its hotel. In March 2008, 6 months after completion, Vivid produced a draft final account in the approximate gross sum of £4.39m, with further documentation to follow. Documents were provided piecemeal between May and October, changing the sum. The sum had changed again on 12 December, when Vivid commenced adjudication proceedings in respect of the final account. ...
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18th December 2007Amber Construction Services Ltd v London Interspace HG Ltd [2007] EWHC 3042 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a party loses an adjudication and has no basis for resisting enforcement of that decision, it may be penalised on costs if that party fails to adhere to the decision and intimates that it intends to challenge the adjudicator’s decision or enforcement proceedings. Mr. Justice Akenhead – Technology and Construction Court Background Amber obtained an adjudicator’s decision against London Interspace. London Interspace did not pay the sum that the adjudicator decided it owed to Amber. Amber’s lawyers wrote to London Interspace stating that if the sum was not paid without delay Amber would commence enforcement proceedings. London Interspace’s lawyers wrote back saying that they had a valid jurisdictional defence to...
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30th November 2007PC Harrington Contractors Ltd v Multiplex Constructions (UK) Ltd [2007] EWHC 2833 (TCC)
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29th November 2007Williams (Mrs Sandra) t/a Sanclair Construction v Abdul Noor t/a India Kitchen [2007]This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Whether an adjudication is brought by the wrong party or whether is it brought by the right party but in the wrong name is a question of fact. His Honour Judge Hickinbottom – Queen’s Bench Division, Technology and Construction Court Background The parties entered into an agreement under which the claimant agreed to carry out building works at a take away restaurant to convert it into a seated dining restaurant. The agreement included a provision allowing either party to refer disputes to adjudication and the adjudication provisions would be those set out in the Scheme for Construction Contracts. The adjudicator would be appointed by the President of the Chartered Institute of Arbitrators. However, the adjudicator was...
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20th November 2007Ledwood Mechanical Engineering Ltd v Whessoe Oil and Gas Ltd [2007] EWHC 2743 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes (a) Where a dispute regarding an interim payment is referred to adjudication under the Scheme for Construction Contracts (the “Scheme”), the adjudicator’s decision must be applied to the interim payment that was originally in dispute and should not be applied to a later interim payment falling due after the adjudication was commenced. (b) The paying party to an adjudication may set off an amount against monies payable to the receiving party pursuant to the adjudicator’s decision only where it follows logically from the adjudicator’s decision that the paying party is entitled to recover that specific amount. Set off will not be permitted where the quantum of the sum that the paying party seeks to set off is disputed. Technology...
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15th November 2007Harris Calnan Construction Co. Ltd v Ridgewood (Kensington) Ltd [2007] EWHC 2738 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If a respondent does not reserve his position in relation to any jurisdictional challenge he raises in an adjudication, the court may imply that this means that the respondent is content to be bound by the adjudicator’s decision on the jurisdictional challenge.His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction Court Background The Defendant raised the argument in the adjudication that the adjudicator did not have the necessary jurisdiction to decide the dispute because there was no contract in writing. The adjudicator considered this submission and decided that there was a contract in writing. Therefore, the jurisdictional challenge failed. An issue that arose in enforcement proceedings...
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1st November 2007Moorside Investments Ltd v DAG Construction Ltd [2007] Lawtel AC0115735
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30th October 2007Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd No 2 [2007] EWHC 2507 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court has a statutory discretion as to what interest is payable on sums awarded by an adjudicator from the date upon which the cause of action arises until the date on which judgment is given. The cause of action in an enforcement application of an adjudicator’s decision is the failure by the unsuccessful party to comply with that decision, therefore that will be the date from which the Court has discretion to award interest. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction CourtBackground Ringway was awarded summary judgment enforcing an adjudicator’s decision relating to payment against Vauxhall (please click here to read a summary of that decision). It was held by Mr Justice Akenhead...
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25th October 2007Treasure & Son Ltd v Dawes [2007] EWHC 2420 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An oral variation to a construction contract (to which the HGCRA did not apply because it related to a residential development) was held not to, of itself, undermine the contractual adjudication process or preclude the adjudicator from having jurisdiction. Furthermore, the lack of signature on the adjudicator’s decision did not invalidate that decision. Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction Court Background Treasure was appointed to carry out refurbishment and restoration works at Dinmore Manor by Mr Dawes under a contract incorporating the JCT Standard Form of Prime Cost Contract (1998 Edition with amendments 1 and 2). Practical Completion of the works was certified in December 2004,...
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23rd October 2007Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd No1 [2007] EWHC 2421 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A dispute over payment was held to have crystallized when, following an application for interim payment under the contract by the contractor, no valid withholding notice was issued by the employer. A common sense application of the existing case law on “no dispute” arguments was taken.Mr Justice Akenhead – Queen’s Bench Division, Technology and Construction CourtBackgroundVauxhall employed Ringway to construct a new vehicle distribution centre and various associated works under a contract incorporating the JCT Standard Form of Contract With Contractor’s Design (1998 Edition). Substantial delays occurred on the project which, according to Ringway, resulted from factors for which they were not responsible. ...
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3rd October 2007Leading Rule v Phoenix Interiors Ltd [2007] EWHC 2293 (TCC)
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30th July 2007Michael John Construction Ltd v St Peters Rugby Football Club [2007] EWHC 1857 (TCC)
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17th July 2007Pierce Design International Ltd v Johnston [2007] EWHC 1691 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The TCC has upheld a provision entitling an employer to withhold payment without having issued a withholding notice where the contract was determined for default of the contractor. This effectively confirms that the House of Lords decision in Melville Dundas v Wimpey is not limited to situations of insolvency and/or impossibility of issuing a withholding notice.His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction CourtBackground The defendants engaged the claimant to carry out construction works under a contract incorporating the JCT Standard Form of Building Contract (With Contractor’s Design), 1998 edition (with amendments). The defendants failed to pay in full a number of interim payments...
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4th July 2007DGT Steel & Cladding Ltd v Cubbitt Building & Interiors Ltd [2007] EWHC 1584 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court has decided that it has an inherent jurisdiction to stay proceedings issued in breach of a binding agreement to refer disputes to adjudication, so that a defending party could insist on its right to have the dispute referred to adjudication. The persuasive burden was on the party seeking to resist the stay to show good reason why the agreement to adjudicate should not be enforced. His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction CourtBackground Cubitt, the contractor, engaged DGT, the sub-contractor, to carry out external cladding works. The sub-contract contained an adjudication clause that provided that “Any dispute, question or difference arising under or in connection...
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29th June 2007Tyco Fire & Integrated Solutions (UK) Ltd v Rolls-Royce Motor Cars Ltd [2007] All ER (D) 86 (Jul)
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31st May 2007A.R.T. Consultancy Ltd v Navera Trading Ltd [2007] EWHC 1375This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where only one of two distinct elements of works is detailed in a written contract, an adjudicator will only have jurisdiction to address issues relating to the element of work that is detailed in the written contract. Technology and Construction Court, Judge Peter Coulson QC Background Navera Trading Limited (“Navera”) appointed A.R.T. Consulting Limited (“ART”) to carry out design and construction work in respect of a site on Kilburn High Road, London. ART made claims for payments which were not met and commenced adjudication. The adjudicator decided that the design works were carried by ART under a separate agreement the terms of which were not all in writing and that therefore he had no jurisdiction to deal...
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31st May 2007AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If an adjudicator receives new information shortly before his deadline for reaching a decision, which makes it necessary for him to seek a short extension of time from the parties, the parties are under an obligation to reply plainly and promptly to that request. Failure to reply may be taken to mean consent to the request. This is particularly so where the party in question continues to participate in the adjudication.HH Judge Coulson QC – Queen’s Bench Division, Technology and Construction CourtBackground Yule commenced adjudication proceedings against Speedwell. At an early stage, the adjudicator requested and Yule granted a 14-day extension expiring on 3 April 2007. Shortly before expiry of the extended period,...
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23rd May 2007Mott MacDonald Ltd v London & Regional Properties Ltd [2007] EWHC 1055 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator’s decision on a dispute arising from a letter of intent was unenforceable because the letter of intent did not constitute a contract in writing/evidenced in writing for the purposes of s.107(2) of the HGCRA. The adjudicator’s decision was also procedurally flawed because he withheld delivery of the decision for 6 calendar days pending receipt of his fees.HH Judge Thornton QC – Queen’s Bench Division, Technology and Construction CourtBackground Mott MacDonald (“MM”) was approached by LRP to provide consultancy services in relation to a business park development. MM was initially instructed under a letter of intent pending final agreement between the parties. The letter of intent was...
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17th May 2007Mast Electrical Services v Kendall Cross Holdings Ltd [2007] EWHC 1296 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Mast Electrical Services (as trading division of John W & S Dorin Limited) v Kendall Cross Holdings Limited [2007] EWHC 1296 (TCC) Judgment Date: 17.05.2007 Where documents fail to set out, record or evidence all the material terms of a contract, they will not amount to a construction contract in writing for the purposes of s.107 of the Housing Grants, Construction and Regeneration Act 1996 (the “Act”). Technology and Construction Court, Mr Justice Jackson Background The defendant contractor (“Kendall”) was invited to tender by Your Homes Newcastle Limited (“YHN”) for the refurbishment of local authority homes. Kendall sent out tender documents for electrical works to prospective sub-contractors. ...
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14th May 2007Bothma (t/a DAB Builders) v Mayhaven Healthcare Ltd [2007] EWCA Civ 527This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court of Appeal recently refused permission to appeal against a judgment that rendered an adjudicator’s decision invalid because he lacked jurisdiction. Briefly:The Contractor had, in its adjudication notice, sought to refer four disputes in the same reference. The Scheme for Construction Contracts applied and (like many other rules) only allows one dispute to be referred at a time, unless the parties agree otherwise.The Court held that the disputes were independent and unrelated. Without the Employer’s consent, the adjudicator had no jurisdiction to determine more than one dispute.While the Employer did not consent, it did not expressly complain either. Instead it generally reserved its right to take any further points as to the adjudicator’s...
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4th May 2007Domsalla (t/a Domsalla Building Services) v Dyason [2007] EWHC 1174 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The withholding provisions in the JCT Minor Works (1998 Ed.) were held to be unfair towards a residential occupier (i.e. a consumer) and in breach of EU consumer laws. In addition, HHJ Thornton QC thought that the court had the power to intervene and overturn an adjudicator’s decision if the adjudicator got the facts or law wrong, provided the adjudicator’s jurisdiction arose under a contract to which the HGCRA did not apply. HH Judge Thornton QC - Queen's Bench Division, Technology and Construction Court BackgroundMr Dyason’s home was destroyed by fire. His insurers accepted liability under the insurance policy and appointed a contract administrator and loss adjustor to manage the reinstatement of the house. ...
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27th April 2007Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd [2007] EWCA Civ 443
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30th March 2007Hart Investments Ltd v T.M.C. Fidler (t/a Terence Fidler Partnership) [2007] EWHC 1058 (TCC)
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26th March 2007Rohde v Markham-David (No 2) [2007] EWHC 1408 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes It is incumbent on the adjudicator to ensure that the relevant documentation has been validly served and brought to the attention of the responding party. Failure to do so may lead to an unenforceable adjudication decision on the grounds that the adjudication is deemed not to have been validly started and/or conducted with minimum standards of fairness and natural justice.His Honour Judge Thornton QC – Queen’s Bench Division, Technology and Construction Court This judgment relates to the trial of a claim that was previously the subject of an application for summary judgment. Please click here to read our Adjudication Zone case summary of that summary judgment (which sets out the facts to the case).The principal issue was...
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20th March 2007Claymore Services Ltd v Nautilus Properties Ltd [2007] EWHC 805 (TCC)
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15th March 2007R C Pillar & Son v The Camber [2007] EWHC 1626 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a responding party participates in an adjudication having reserved its right to challenge the appointment of the adjudicator on jurisdictional grounds, it may lose that right if it advances counter-claims of its own in the adjudication.His Honour Judge Thornton QC – Queen’s Bench Division, Technology and Construction Court Pillar, a building contractor, sought to enforce an adjudicator’s decision in its favour against Camber, the party for whom the work from which the dispute arose was carried out. From the outset of the adjudication, Camber had challenged the jurisdiction of the adjudicator, stating in its response document that it would only take part in the adjudication on the basis that such action would not prejudice...
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14th March 2007Flannery Construction Ltd v M Holleran (2007) Ltd [2007] EWHC 825 (TCC)
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12th March 2007Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd No 3 [2007] EWHC 659 (TCC)
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6th March 2007Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No2) [2007] EWHC 447 (TCC)
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27th February 2007Honeywell Control Systems Ltd. v Multiplex Constructions (UK) Ltd. [2007] EWHC 390 (TCC)
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9th February 2007Middleton (G) Ltd v Berry Creek Overseas Development Ltd [2007] EWHC 318 (TCC)
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9th February 2007Hart Investments Ltd v Larchpark Ltd. [2007] EWHC 291 (TCC)
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8th February 2007Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC)
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1st February 2007HG Construction Ltd v Ashwell Homes (East Anglia) Ltd. [2007] EWHC 144 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case reiterates the principle that an adjudicator’s decision may not be overruled by a subsequent adjudicator. To the extent that an adjudicator purports to decide any dispute that has already been decided by an earlier adjudicator, the later adjudicator’s decision will not be binding. Mr Justice Ramsey – Queen’s Bench Division, Technology and Construction Court Ashwell was the employer and HG Construction the contractor under a JCT contract relating to a new housing development. Various disputes arising between the parties were referred to adjudication. In Adjudication No.1, the adjudicator decided that the liquidated and ascertained damages (“LADs”) provisions in the contract were valid...
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1st February 2007Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007] EWHC 131 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudication provisions of the GC/Works sub-contract are invalid because they are non-compliant with the HGCRA. The offending clause in the GC/Works sub-contract provided that the adjudicator’s decision would be valid if issued after the time allowed.His Honour Judge Havery QC – Queen’s Bench Division, Technology and Construction Court This case dealt with an application for summary judgment to enforce an adjudicator’s decision. Judge Havery QC held that the following term in the contract, which incorporated the GC/Works sub-contract conditions, was non-compliant with the HGCRA: “The adjudicator’s decision shall nevertheless be valid if issued after the time allowed…”. For that reason,...
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31st January 2007Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd No 2 [2007] EWHC 145 (TCC)
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30th January 2007Lead Technical Services Ltd v CMS Medical Ltd [2007] EWCA Civ 316This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes There are exceptional cases where adjudicators’ decisions are not readily enforced by the courts. These include where it is appears that the wrong body appointed the adjudicator, or the adjudicator decided a dispute under the wrong construction contract. In Lead Technical Services Ltd v CMS Medical Ltd a consulting engineer brought an adjudication to recover around £84K in fees that were allegedly owing. The engineer was successful in the adjudication, and sought to enforce the adjudicator’s decision by way of a summary judgment application. Summary judgment (which is the usual vehicle for enforcing adjudicators’ decisions) will be granted where the court is of the view that the defendant has no real prospect of defending the...
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19th January 2007Bennett (Electrical) Services Limited v Inviron Limited [2007] EWHC 49 (QB)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes HH Judge Havery QC – Queen’s Bench Division, Technology and Construction Court A dispute arose between Bennett, an electrical contractor and its mechanical and electrical contractor, Inviron. The parties went to adjudication and a decision was made in Bennett’s favour. Bennett sought to enforce the adjudicator’s decision. Inviron opposed the enforcement proceedings on the following grounds:(1) There was no contact for the purposes of s107 of HGCRA. There was only a letter of intent which was ‘subject to contract’; and (2) the adjudicator had no jurisdiction since the issue of jurisdiction had been determined in an earlier adjudication.HHJ Wilcox dealt with the first argument. ...
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19th January 2007Epping Electrical Company Ltd v Briggs & Forrester (Plumbing Services) Ltd [2007] EWHC 4 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a contractual adjudication procedure is non-compliant with the HGCRA, the entire contractual procedure will be deemed non-compliant and the statutory adjudication scheme will apply instead. The CIC adjudication procedure was held to be non-compliant with the HGCRA and therefore invalid.His Honour Judge Havery QC – Queen’s Bench Division, Technology and Construction Court Background A dispute arising between the parties was referred to adjudication, conducted in accordance with the Construction Industry Council (“CIC”) procedure current at the time of the appointment. The 28-day period in which the adjudicator was required to reach a decision expired on 1 November. The deadline was extended to 14 November...
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10th January 2007Multiplex 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,...
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21st December 2006Cubitt Building & Interiors Ltd v Fleetglade Ltd [2006] EWHC 3413 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case provides a reminder that where the contractual adjudication framework is compliant with the HGCRA, the contract will govern the adjudication rather than the legislation. The court interpreted the contractual provisions relating to timetabling in a sensible and commercial way to reach the conclusion that the adjudicator had been validly appointed even though the referral notice was served just outside the seven-day period. Further, a decision reached within the agreed extended date (just), but only communicated to the parties twelve hours later and after expiry of that period was held to have been communicated ‘forthwith’. The adjudicator’s decision was upheld.His Honour Judge Coulson QC – Queen’s...
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20th December 2006Quietfield Ltd v Vascroft Construction Ltd [2006] EWCA Civ 1737This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Lord Justices May and Dyson, Lady Justice Smith DBE – Court of AppealSection 108(3) of the Housing Grants, Construction and Regeneration Act 1996 and paragraph 23 of the Scheme for Construction Contracts provide for the temporary finality of an adjudicator’s decision. Paragraph 9(2) of the Scheme obliges an adjudicator to resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication. This case looks at how these provisions aimed at preventing an adjudicator re-hearing the same or substantially the same dispute interrelate with a usual provision in a construction contract allowing a contractor to make successive applications...
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20th December 2006Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd [2006] EWCA Civ 1834
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15th December 2006ROK Build Ltd v Harris Wharf Development Company Ltd [2006] EWHC 3573 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The referring party in an adjudication must be a contracting party to the relevant construction contract (or an assignee). In this case, a substitution of one party for another had occurred, but no formal written assignment (as required by the contract) had taken place, therefore the court held that the referring party had no right to adjudication under the contract.His Honour Judge Wilcox – Queen’s Bench Division, Technology and Construction CourtRok applied for enforcement of an adjudication decision made pursuant to a dispute in a construction contract. Harris Wharf contested the jurisdiction of the adjudicator on the grounds that Rok had not been the legal entity that had entered into the construction contract with Harris...
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8th December 2006Nageh v Giddings [2006] EWHC 3240 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In this case, the court took the opportunity to express its disapproval at attempts to attack the adjudicator’s jurisdiction on the basis of minor procedural gripes, which were, in the circumstances, unfounded. His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction CourtThis case dealt with an application to set aside a summary judgment based on an unpaid adjudication order made against the Defendants. The court held that the application failed on procedural grounds. Firstly, there was a long delay (over a year) in bringing the application. Secondly, the Defendants argued that they had been unaware of the proceedings or the summary judgment. The judge found that the Claimants...
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16th November 2006Bothma D & T t/a DAB Builders v Mayhaven Healthcare Ltd [2006] TCC Bristol 6BS90599
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14th November 2006Thomas Vale Construction Plc v Brookside Syston Ltd [2006] EWHC 3637 (TCC)
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7th November 2006South West Contractors Ltd v Birakos Enterprises Ltd [2006] EWHC 2794 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The absence of an express reference to mitigation in adjudicator’s decision does not mean that the adjudicator has failed to consider it and, in any event, it is not the role of the court to examine minutely the reasons for a decision to see whether an adjudicator may have made a mistake.His Honour Judge Wilcox – Queen’s Bench Division, Technology and Construction CourtBackground South West were engaged as project managers on a project to carry out conversion works to office premises pursuant to a fee agreement and a separate management agreement. The fee agreement related to the profit element of South West’s earnings, whereas the management agreement related to South West’s costs. Birakos terminated South West’s...
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3rd November 2006Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case raises two points. First, that decision of an adjudicator where the referral notice was served outside the permitted time will be unenforceable. Secondly, a contract in writing will only be considered as such for the purposes of Section 107 of the Construction Act where all of the terms of the contract are in writing. The effect of this is that letters of intent will often fall short of the requirement.His Honour Judge Peter Coulson QC - Queen's Bench Division, Technology and Construction CourtOn 1 November 2002, Hart Investments Limited (“Hart”) sent a letter of intent to Larchpark, via its agents, instructing Larchpark to carry out extensive building works at a property that Hart owned at Muswell Hill, London. The letter of intent...
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1st November 2006Chorus Group v Berner (BVI) Ltd & Anor [2006] EWHC 3622 (TCC)
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12th October 2006Knapman R J Ltd. v Richards [2006] EWHC 2518 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes It seems that non-compliance with part of an adjudicator’s decision will not preclude a party from obtaining a court order for enforcement of other parts of the decision that were decided by the adjudicator in its favour.Furthermore, the court will not, as a general rule, assume that the parties have abandoned any part of the existing contract pursuant to an adjudication order unless it can be demonstrated that the adjudicator was expressly asked to do something, or decide something, which under the contract would be the responsibility of either one of the parties or the contract administrator.His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction CourtBackground Richards engaged Knapman to build two detached...
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11th October 2006Gray & Sons Builders (Bedford) Ltd. v Essential Box Company Ltd. [2006] EWHC 2520 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Defendants who inform the court at the eleventh hour of their decision not to contest an application for adjudication enforcement may well find themselves stung by an order for costs calculated on an indemnity basis.His Honour Judge Coulson QC – Queen’s Bench Division, Technology and Construction Court Gray brought an application for summary judgment to enforce an adjudication decision against Essential Box. Essential Box contested the application until the morning before the hearing, when it indicated that it did not oppose Gray’s application. The issue of the measure of costs fell to be determined by the court.Judge Coulson QC took the view that in applications for adjudication enforcement, where the defendant only informs...
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3rd October 2006McConnell Dowell Constructors (Aust) P/L v National Grid Gas plc [2006] EWHC 2551 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In the absence of contractual provisions relating to adjudication, does an agreement settling a dispute under a construction contract (which does duly provide for adjudication) fall within the remit of the statutory adjudication provisions and/or contractual provisions for adjudication contained in the construction contract? The courts have reached the conclusion that it depends on whether the agreement is a separate, standalone settlement agreement or a supplemental agreement that resolves the dispute by varying the construction contract. The former will not be subject to the adjudication provisions either under the HGCRA or under the construction contract, whereas the latter will be a variation of the construction contract and therefore...
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23rd August 2006Management Solutions Ltd v Bennett (Electrical) Services Ltd [2006] EWHC 1720_2 (TCC)
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31st July 2006Redworth Construction Ltd v Brookdale Healthcare Ltd [2006] EWHC 1994 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The statutory provisions relating to adjudication only apply to contracts in writing. This case constitutes a cautionary tale to parties to construction contracts who proceed on an informal footing. In this case, an order made by an adjudicator for repayment of damages for delayed completion was not enforced because the court found that the contract was not wholly in writing and therefore the adjudication framework instituted by the HGCRA did not apply.This case also highlights the importance of choosing carefully which submissions and which documents to refer to the adjudicator. Redworth was precluded from relying on certain documentation to argue its case before the court because it had not provided that documentation to the adjudicator...
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17th July 2006Monavon Construction Ltd v Davenport No. 2 [2006] EWHC 1810 (TCC)
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10th July 2006Management Solutions v Bennett (Electrical) Services Ltd [2006] EWHC 1720 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudication provisions of HGCRA 1996 only apply to written construction contracts or construction contracts sufficiently evidenced in writing. This case examines the meaning of “contracts made in writing”. Variations ordered orally under a contract by virtue of an express contractual term allowing the ordering of such variations do not make the contract a partially oral contract. Furthermore, where a construction contract appears to be in writing, the adjudicator will have jurisdiction to decide any dispute as to whether the contractual relationship between the parties is governed by those written terms or a preceding oral agreement. In any event, on a contractual analysis, the subsequent written terms had superseded...
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7th July 2006Harlow & Milner Ltd v Teasdale No3 [2006] EWHC 1708 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case illustrates the clear but sometimes harsh consequences of the system of construction adjudication in the context of a private property owner defaulting on interim payments due to a contractor. Following non-compliance by the property owner with various court orders enforcing the original adjudication order to pay the monies owed to the contractor, the court ordered the sale of the investment properties concerned to satisfy the judgment sum.Judge Peter Coulson QC – Queen’s Bench Division, Technology and Construction Court The Defendant had bought three properties as an investment. The properties were affected by asbestos contamination. The Defendant intended to refurbish them with the help of a grant from Leeds...
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13th June 2006Midland Expressway Ltd v Carillion Construction Ltd [2006] EWHC 1505 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudication is only available once a dispute has arisen between the parties. A dispute can only be said to have crystallised if a claim is denied/not admitted by the other side. Further if a claim is presented in such a nebulous and ill-defined manner that the defendant cannot sensibly respond to it, neither silence nor express non-admission could give rise to a dispute for the purposes of adjudication or arbitration.It was also commented obiter that there was nothing in the Housing Grants Construction and Regeneration Act 1996 that prevented a party from discontinuing a claim or a head of claim in an adjudication.Mr Justice Jackson – Queen’s Bench Division, Technology and Construction CourtBackgroundThe Secretary of State appointed...
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8th June 2006Multiplex Constructions (UK) Ltd v West India Quay Development Co (Eastern) Ltd [2006] EWHC 1569 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Errors of fact or law made by the adjudicator will not render his decision invalid. The only challenge made to his decision must be on the grounds of breach of natural justice or excess of jurisdiction. Applying methods of analysis different to those adopted by the parties, failing to consider certain facts or to provide reasons for the decision do not, in the context of an adjudication, amount to a breach of natural justice nor excess of jurisdiction.Mr Justice Ramsey – Queen’s Bench Division, Technology and Construction CourtBackground Multiplex successfully obtained several extensions of time in an adjudication, which reduced Multiplex’s overall liability for liquidated damages under the construction contract and resulted...
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7th June 2006Hillview Industrial Developments (UK) Ltd v Botes Building Ltd [2006] EWHC 1365 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case constitutes a reminder that there are only very limited grounds upon which a defendant may successfully persuade a court to refuse to order summary enforcement of an adjudicator’s decision. A defendant is not entitled to withhold payment ordered in an adjudication on the grounds of his anticipated recovery in a future adjudication/court proceedings based on different issues. Judge Toulmin CMG QC – Queen’s Bench Division, Technology and Construction Court This was an application by Hillview for summary judgment to enforce an adjudication decision against Botes. Botes accepted that the adjudicator’s decision was valid, but invited the court to hold that there were compelling circumstances why this case...
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5th June 2006Multiplex Construction (UK) v Cleveland Bridge (UK) Ltd [2006] EWHC 1341 (TCC)
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2nd May 2006Birse Construction Ltd v HLC Engenharia E Gestäo De Projectos Sa [2006] EWHC 1258 (TCC)
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25th April 2006Westdawn Refurbishments Ltd v Roselodge Ltd [2006] Adj.L.R. 04/25
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24th April 2006Paul Boardwell t/a Boardwell Construction v k3D Property Partnership Ltd [2006]
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20th March 2006Rohde Construction v Markham-David [2006] EWHC 814 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Housing Grants, Construction and Regeneration Act 1996 provides that documents relating to an adjudication have effectively been served if they are sent to the defendant’s last known principal residence. In a decision relating to an application to set aside a judgment in default enforcing the adjudication decision, the Technology and Construction Court suggested that an adjudication decision made in the absence of representations by the defendant because he never received the notice of adjudication and other ancillary documentation may be invalid. Jackson J suggested that if it turned out at trial that: (i) the defendant was indeed in ignorance of the adjudication because he had moved to a new address and the current tenants were...
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20th March 2006William Verry Ltd v Camden London Borough Council [2006] EWHC 761 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The payment of sums awarded in an adjudicator’s decision may not be resisted on the grounds that:i) Those sums are inconsistent with the sum certified in a certificate issued subsequent to the certificate which forms the subject matter of the adjudicator’s decision. The adjudicator’s decision is binding pending final determination of the disputes.ii) The opposing party has a counterclaim for unliquidated damages for breach of contract in respect of defects, which is currently the subject of an on-going adjudication. There is no right of set-off against an adjudicator’s decision, otherwise that would defeat the intention of Parliament. Mr Justice Ramsey – Queen’s Bench Division, Technology...
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15th March 2006Harlow & Milner Ltd v Teasdale No2 [2006] EWHC 535 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A Final Charging Order in respect of an unpaid judgment sum pursuant to an adjudicator’s decision cannot be opposed on the grounds that arbitration proceedings in respect of the same dispute are under way. To do so would wholly undermine the adjudication process and run the risk that unsuccessful parties to an adjudication could commence arbitration proceedings to avoid the adjudicator’s decision. In providing parties with a prompt (albeit temporary) result, the statutory adjudication process is precisely designed to avoid such delaying tactics. His Honour Judge Coulson, Technology and Construction Court This case concerns an application by the Claimant (‘Harlow’) to make Final an Interim Charging Order against...
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8th March 2006Capital Structures Plc v Time & Tide Construction Ltd [2006] EWHC 591 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where there has never been a contract because it has been avoided on the grounds of duress, it logically follows that any arbitration or adjudication provision in that contract also becomes void. His Honour Judge David Wilcox, Technology and Construction Court The Claimant (‘Capital’) was appointed as subcontractor by the defendant main contractor (‘Time’) in respect of the supply, delivery and installation of structural steelwork and cladding and the supply of labour and plant for a project. Disputes arose regarding valuations and interim payments and Capital withdrew from the site. Kerrington (Time’s employers) threatened to take over the development which action, according to Time, could have resulted...
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6th March 2006Kier Regional Ltd (t/a Wallis) v City & General (Holborn) Ltd [2006] EWHC 848 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An alleged error by an adjudicator to consider evidence submitted by one of the parties will not invalidate the enforceability of the decision made by the adjudicator. This case provides a useful reminder that the adjudication system subordinates the need to have the “right” answer to the need to have an answer quickly.Mr Justice Jackson – Queen’s Bench Division, Technology and Construction Court In November 2001, Kier agreed to carry out refurbishment and rebuilding works for CG. The Contract Administrator was AYH Plc. A number of delays and problems arose during the course of the works for reasons which were in dispute between the parties and which generated a number of adjudications. In Adjudication...
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9th February 2006John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd [2006] EWCA Civ 64This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes To interpret an adjudication clause, which stated that an adjudicator could award a party its legal costs “as part of his decision", as meaning that the adjudicator could not award costs where he did not give a substantive contested decision as to the matters referred to him, led to an odd and uncommercial result. On the proper construction of the clause, the adjudicator was entitled to award a party its costs despite the fact that he had not made a substantive decision. Lord Justice May, Lord Justice Keene and Lord Justice Baker – Court of Appeal (Civil Division) In October 2002, Parkcare Homes employed John Roberts Architects (JRA) to provide architectural services in relation to certain building works. A dispute arose which...
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9th February 2006Cunningham v Collett & Farmer (a firm) [2006] EWHC 148 (TCC)
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6th February 2006Interserve Industrial Services Ltd v Cleveland Bridge UK Ltd [2006] EWHC 741 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case constitutes a reminder that sums awarded in an adjudication are (absent special circumstances) immediately payable. The losing party cannot withhold sums awarded by the adjudicator on the grounds that it anticipates being awarded a similar sum in a future adjudication with the same party.Mr Justice Jackson – Queen’s Bench Division, Technology and Construction CourtThe Highways Agency employed Nuttall to refurbish a viaduct on the M1. Nuttall engaged Cleveland to carry out certain works. Cleveland in turn sub-contracted part of the job to Interserve. The project was subject to various delays and the parties engaged in a series of adjudications. Cleveland came under an obligation to pay sums awarded...
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2nd February 2006Quietfield Ltd v Vascroft Contractors Ltd [2006] EWHC 174 (TCC)
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27th January 2006Michael John Construction Ltd v Golledge [2006] EWHC 71This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudication is a procedure which is effective between parties to a construction contract. In cases where unincorporated association enter into construction contracts it is not always clear as to who, personally, is liable under the contract. This can give rise to difficulties if, mistakenly, a party attempts to bring an adjudication against a person who is not a party to that contract. On the facts of the case, the claimant could elect to enforce the relevant adjudicator’s decision against either the association’s trustees, as principal, or against the person who had signed the contract (either as their agent or, on a personal basis). The judge rejected the defendants’ other defences to enforcement. The...
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27th January 2006Rankilor & Perco Engineering Service Ltd v Igoe (M) Ltd [2006] Adj.L.R. 01/27This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator’s decision will only be unenforceable for a serious breach of the rules of natural justice in very exceptional cases. An adjudicator who made a finding of fact on an issue raised by the parties, but which was a finding that neither party had contended for, was held not to have committed a serious breach of the rules of natural justice. His Honour Judge Gilliland QC – Queen’s Bench Division, Salford District Registry, Technology and Construction CourtBackground Igoe appointed Perco as a sub-contractor to carry out some auger boring work. The sub-contract was a fixed price contract and the agreed term, according to Igoe, for completing the work was 10 days. Perco encountered difficulties carrying out...
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23rd January 2006CFW Architects (A Firm) v Cowlin Construction Ltd [2006] EWHC 6 (TCC)
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20th January 2006Baris Ltd v Kajima Construction Europe (UK) Ltd. [2006] EWHC 31 (TCC)
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16th January 2006Harlow & Milner Ltd v Teasdale [2006] EWHC 54 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The most efficient way of enforcing an adjudicator’s decision is to seek summary judgment through the Technology and Construction Court. There are very limited grounds on which a summary judgment application may be resisted by the unsuccessful party to an adjudication. In contrast, the commencement of bankruptcy or winding up proceedings may lead to prolongation of the point at which a judgment debt is obtained against the unsuccessful party, plus greater expense. Ordinarily, therefore, the issue of a statutory demand will not be the appropriate means of enforcing an adjudicator’s decision. HHJ Coulson QC Technology and Construction Court The dispute giving rise to the adjudication concerned a contract, in the JCT Minor...
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12th January 2006Ardmore Construction Ltd v Taylor Woodrow Construction Ltd [2006] SCHOS3This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In this Scottish case the decision of an adjudicator was set aside on the basis that he had not afforded natural justice to the parties to the adjudication. The adjudication arose out of a subcontract for works at Glasgow Harbour, where the Scottish edition of the Standard Form of Sub-Contract Agreement, 1998 edition, was used. The underlying dispute between the parties concerned the subcontractor’s entitlement to overtime payments. The subcontractor contended that it had been instructed by the main contractor to accelerate its works, where the need to accelerate did not arise out of any breach of contract by the subcontractor. It was contended by the subcontractor that, in reliance on the instruction, it did accelerate its works, and was...
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10th January 2006Andrew Wallace Ltd v Artisan Regeneration Ltd [2006] EWHC 15 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The defendants disputed an adjudicator’s award on the basis that (i) they had contracted with the claimant as an individual and not as a company, (ii) documents had been fabricated and the original contract altered and (iii) there had been no consensus to found an agreement in writing (with the result the adjudicator had no jurisdiction). On the facts, the court held that the defendants had no real prospect of defending the claim since (i) no question had been raised as to the identity of the claimant prior to the adjudication, (ii) there was insufficient evidence to show any fraud on the claimant’s part and (iii) the defendants had throughout acted as if a written contract was in place and had waived any right to object to the adjudicator’s...
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19th December 2005All In One Building & Refurbishments Ltd v Makers UK Ltd [2005] EWHC 2943This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The time when a payment falls due under an interim or final application will not be determinative as to whether a dispute has arisen; in this case it was the entitlement to payment that was being denied and therefore it was irrelevant that the time for payment against the application had not yet lapsed. Criticisms as to how an adjudicator deals with apparent contradictions in evidence are not a matter for the court. Were it to have been demonstrated that the company was in insolvent liquidation then it would have been appropriate to refuse summary judgment. Judge David Wilcox Technology and Construction Court All in One Building and Refurbishments Ltd ("AIO") were engaged by Makers UK Ltd ("Makers") in November 2004 as subcontractors to refurbish...
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9th December 2005Full Metal Jacket Ltd v Gowlain Building Group Ltd [2005] EWCA Civ 1809
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5th December 2005Brown (L) & Sons v Crosby North West Homes 2005] EWHC 3503 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This is a case looking at the scope of the adjudicator’s jurisdiction under the JCT Contract 1998 form. There was a discrepancy between clause 5 (which gave the parties the right to refer disputes to adjudication) and clause 39A.1 (which dealt with the adjudication procedure itself): the former referred to disputes arising “under” the contract, whereas the latter had been amended so that it read “under, out of or in connection with” the contract. Notwithstanding the absence of the words “out of or in connection with” in clause 5, the court found that the parties had intended to extend the adjudicator’s jurisdiction to cover disputes arising out of or in connection with the contract. ...
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25th November 2005Tera Construction Ltd v Yung Ton Lam [2005] EWHC B1 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case illustrates the fact that the courts are usually reluctant to (a) refuse enforcement of adjudication decisions for lack of jurisdiction on the part of the adjudicator or (b) exercise their discretion to order a stay of execution on the grounds that the employer has a claim in respect of defective works and/or that the contractor is in financial difficulties.Christopher Clarke J – Queen’s Bench Division, Technology and Construction CourtBackground Mr Lam employed Tera to demolish a house and construct two new houses under a JCT Minor Works Agreement. Various issues arose between the parties, including the extension of time that was due to Tera, the valuation of the works, the sum due on the penultimate certificate toward payment,...
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24th November 2005Midland Expressway Ltd (MEL) v Carillion Construction Ltd (CAMBBA) (No2) [2005] EWHC 2963 (TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This is a particularly important case for those involved in PFIs and PPPs. It concerned the construction of the new M6 toll road, near Birmingham. The contractual arrangements for the PFI involved a special-purpose vehicle (SPV) company entering into a concession agreement with the Secretary of State for Transport, under which the SPV agreed to design, build and operate the M6 toll road. The SPV’s design and construct operations were subcontracted to a contractor, which was a consortium of large construction companies. The subcontract contained “equivalent project relief” provisions which, in effect, limited the subcontractor’s entitlement to payment for such matters as variations, and compensable delay, to the amount which...
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18th November 2005Hatmet Ltd v Herbert (t/a LMS Lift Consultancy) [2005] EWHC 3529 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The construction contract must be made in writing, by exchange of communications in writing or evidenced in writing for the statutory provisions relating to adjudication to apply (s.107 HGCRA). In this case, the court held that even a simple contract that did not spell out terms regarding methodology or design specification could meet this requirement. This was so even though the court also found it necessary/appropriate to imply a term that the employer would pay a reasonable price because the parties had not agreed a revised price following changes to the specification for the works. Her Honour Judge Kirkham – Queen’s Bench Division, Technology and Construction CourtBackground Bouygues was the main contractor on a construction...
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16th November 2005Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court of Appeal has reaffirmed the approach of the courts to adjudicator’s decisions, namely that they are to be treated as enforceable, and will only be interfered with in rare situations. This is so even if the adjudicator has made obvious or highly arguable errors of fact or law. The facts of this case were quite detailed, but in headline terms they concerned a dispute over a subcontractor’s entitlement to payment for performing works in upgrading a dock. The terms of payment under the subcontract, and a related “alliance agreement” between the parties, used a “target cost” mechanism, so that the pain or gain of cost overruns or savings would be shared between them. The project works were delayed, and...
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14th November 2005Midland Expressway Ltd v Carillion Construction Ltd (No1) [2005] EWHC 2810 (TCC)
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11th November 2005Captiva Estates Ltd v Rybarn Ltd [2005] EWHC 2744 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Section 6 of the Construction Contracts Exclusion Order 1998, Statutory Instrument 1998 No 648 is not concerned only with unconditional agreements; a contract containing the grant of an option to take a leasehold or freehold interest in the land on which construction operations take place would fall within the ambit of section 6 of the Exclusion Order. Further, the grant or disposal of the leasehold or freehold interest of the land does not need to relate to the whole of the land on which the principal construction operations take place under the contract. Judge David Wilcox Technology and Construction Court Captiva entered into a written contract with Rybarn whereby Rybarn agreed to construct 28 residential flats and 28 parking spaces (either...
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10th November 2005David McClean Contractors Ltd v The Albany Building Ltd [2005] TCC 101/05This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes There is no right to set-off against sums found due by an adjudicator on the basis that a party might be entitled to monies if it succeeds in a claim that it puts forward at a later date. Allegations of a breach of natural justice by the adjudicator, lack of jurisdiction, and that the adjudicator had already decided the issue in an earlier adjudication, were all rejected on the facts of the case. His Honour Judge Gilliland QC, Salford District Registry, Technology & Construction Court Albany engaged David McLean Contractors (DMC) as contractors under a JCT form of building contract. Disputes arose between the parties regarding certain interim payments and Albany’s entitlement to deduct liquidated and ascertained damages (LADs)...
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31st October 2005Hackwood Ltd v Areen Design Services Ltd [2005] EWHC 2322 (TCC)
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29th July 2005Bryen & Langley Ltd v Boston [2005] EWCA Civ 973This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court of Appeal has issued a reminder of the fact that simply because two parties had proposed that their agreement be contained in a formal contract to be drawn up and signed in the future, this did not preclude the conclusion that they had already informally contractually committed themselves on exactly the same terms. The residential occupier/employer’s argument that the adjudication clause was an unfair term was dismissed on the grounds that it was the consumer/employer who had stipulated that a standard form contract should apply (the JCT Standard Form of Building Contract, Private with Quantities, 1998 Ed.) to the works in the first place.Lord Justices Pill and Clarke and Mr Justice Rimer – Court of Appeal (Civil Division)...
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25th July 2005John Roberts Architects Ltd v Parkcare Homes (No2) Ltd [2005] EWHC 1637 (TCC)
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22nd July 2005Lloyd Projects Ltd v John Malnick [2005] EWHC CivThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A construction contract made orally and recorded subsequently in writing will only satisfy the criteria set out in s.107(2)(c) of the HGCRA if it contains all of the material terms and there are no disputes between the parties as to the terms of that contract.Her Honour Judge Kirkham – Queen’s Bench Division, Birmingham District Registry, Technology and Construction CourtBackground Mr Malnick, a commercial property solicitor, engaged Lloyd Projects to convert his offices into three residential flats. The agreement was concluded orally. Five months later, Lloyd Projects sought to record the agreement reached in a letter dated 11 February to Mr Malnick, a duplicate of which Mr Malnick was requested to countersign and return. ...
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30th June 2005Bennett (Tracey) v FMK Construction Ltd. [2005] EWHC 1268 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Technology and Construction Court, London His Honour Judge Richard Havery QC 30 June 2005 A dispute was referred to an adjudicator within 28 days of the issue of the final certificate under a contract based on the JCT Private Without Quantities. However, following a procedural challenge, the adjudicator resigned and the contractor re-submitted the dispute to him, but after the expiry of the 28 day period for commencing proceedings under clause 30.9.3 of the contract. The Court held that, in such a scenario, the final certificate was not conclusive evidence under clause 30.9.3 in respect of the matters relating to the first adjudication. Mr Bennett employed FMK Construction Limited ("FMK") to carry out building and refurbishment works at his property....
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30th June 2005Baker & Davies Plc v Leslie Wilks Associates (a firm) [2005] EWHC 1179
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21st June 2005Lafarge (Aggregates) Ltd. v London Borough of Newham [2005] EWHC 1337 (Comm)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's decision, when issued by email, will (subject to any express terms of the contract) be taken as given on the date it was emailed, even though it had not been signed. Further, the issue of an adjudicator's decision would not be subject to provisions under the contract governing service of 'Notices'. In absence of any definition in a contract, the court held that the expression 'working day' meant an ordinary office working day even where there was evidence to suggest that the potential working hours of the contractor would include Saturdays. Commercial Court, London Mr Justice Cooke 24 June 2005 In June 2001 the London Borough of Newham ("LBN") employed Lafarge (Aggregates) Limited ("Lafarge") to provide certain construction...
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27th May 2005Allen Wilson Shopfitters v Buckingham [2005] EWHC 1165 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Technology and Construction Court, London His Honour Judge Peter Coulson QC 27 May 2005 An adjudicator's jurisdiction either arises from express terms in the contract or, if there is a construction contract in, or evidenced in, writing, which contains no express adjudication provisions and is not otherwise excluded from the Act, then the provisions in the Act and the Scheme will apply. During 2004 and January 2005 the Claimant, Allen Wilson, carried out extensive building work at Mr Buckingham's property. The contractual basis on which the work was done was in dispute. The Defendant had originally engaged a firm of quantity surveyors, Deacon & Jones ("Deacons"), to manage the works and act as contract administrators however, on 3 January...
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20th May 2005Wimbledon Construction Company 2000 Ltd v Vago [2005] EWHC 1086This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Technology and Construction Court, London His Honour Judge Peter Coulson QC 20 May 2005 In this case the court was asked to stay the enforcement of an adjudicator's award pending final resolution of the claims by arbitration on the basis of the successful party's uncertain financial position. The court derived from case law six principles that should always govern the exercise of the court's discretion when considering a stay of execution in adjudication enforcement proceedings. When applying these principles to the evidence before it, the Court refused to grant the stay sought by the defendant. Mr Vago engaged Wimbledon Construction Company 2000 Limited ("Wimbledon") to carry out works at his house. Disputes arose between the parties and...
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26th April 2005Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWHC 778This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Honourable Mr Justice Jackson, Technology and Construction Court 26 April 2005 An adjudicator's refusal to consider evidence that he sees (even if erroneously) as irrelevant is inherent in the adjudication system and will not render the decision unenforceable. 2. Only in exceptional circumstances will an adjudicator's failure to put his provisional conclusions to the parties constitute such a serious breach of the principles of natural justice that the Court will refuse to enforce the decision. 3. A brief statement of reasons revealing that the adjudicator has dealt with the issues before him and what his conclusions are will suffice in the event that an adjudicator is asked to give reasons. 4. Paragraph 20(c) of the Scheme creates a free-standing...
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23rd April 2005Brown (L) & Sons Ltd v Crosby Homes (North West) Ltd [2008] EWHC 817 (TCC)
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22nd March 2005Palmac Contracting Ltd v Park Lane Estates Ltd [2005] EWHC 919 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In considering a dispute regarding a payment application the issue of whether the application for payment has been validly served is not a question of whether a dispute has arisen and instead is a matter within the adjudicator's jurisdiction to decide. Under the JCT 98 with Contractor's Design form there is no requirement that a notice of adjudication be served on the responding party before an application is made to a nominating body for the appointment of an adjudicator – although it does have to be served on the responding party before the dispute is referred to the adjudicator. Her Honour Judge Frances Kirkham, Technology and Construction Court (Birmingham District Registry) 22 March 2005 The Claimant ("Palmac") contracted...
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17th March 2005Amec v S.S. for Transport [2005] EWCA 291 CAThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Guidance as to the meaning of "dispute" for the purposes of s108(1) of the Housing Grants Construction & Regeneration Act 1996. It is wrong to apply an over-legalistic approach to the question of whether a dispute or difference has arisen. On appeal from the judgment of Mr Justice Jackson dated 11 October 2004 Lord Justice May, Lord Justice Rix and Lord Justice Hooper 17 March 2005 In 1995 AMEC was engaged by the Secretary of State to carry out renovation works at Thelwall Viaduct. The contract incorporated the ICE conditions, 5th edition, with some amendments. The contract was executed under hand, not as a deed. Pell Frischmann were named as engineer in the contract. The works were certified by the engineer as complete on 23 December 1996...
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1st March 2005Connex South Eastern Ltd v M J Building Services Group Plc [2005] EWCA Civ 193This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudication may be brought after a construction contract has been terminated. The fact that many months, or perhaps years, have elapsed since the contract was terminated does not prevent an adjudication from being commenced. Where an adjudication is brought after an elapse of time, the adjudicator will not have jurisdiction to stay or strike out the adjudication proceedings should it be alleged that they were brought as an "abuse of process". Court of Appeal. Ward, Dyson and Carnwath LJJ 1 March 2005 This case concerned a contractor's claim for damages, including loss of profit, flowing from the termination of a contract whereunder the contractor was to supply and install CCTV cameras at a number of train stations. The...
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24th February 2005Great Eastern Hotel Company Ltd v John Laing Construction Ltd [2005] EWHC 181
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11th February 2005Geris v CNIM [2005] EWHC 499This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This case concerned the interpretation of an adjudicator's decision. On the facts, the court held that the adjudicator both decided that sums were due to the referring party but also that the respondent had an entitlement to set off against those sums. As the respondent therefore had a realistic prospect of successfully maintaining its defence to the enforcement proceedings, namely that the decision should not be read as giving rise to an immediate right to payment, the application to enforce the decision was dismissed. Further, although it was not a part of his reasoning, the judge remarked that the courts should only allow a defendant to rely upon an equitable set off to postpone or defeat an adjudicator's decision in the rarest and most exceptional...
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13th January 2005William Verry (Glazing Systems) Ltd v Furlong Homes Ltd [2005] EWHC 138This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party was not bringing a new claim by submitting a Response to the Referral Notice which included a claim for an extension of time for a period that was greater than it had indicated prior to the issue of the Adjudication Notice. In any event, the Adjudication Notice was drafted so broadly as to give the adjudicator jurisdiction to hear the dispute. His Honour Judge Peter Coulson QC, Technology and Construction Court 13 January 2005 The Claimant ("Verry") was appointed by the Defendant ("Furlong") as a design and build contractor. Completion was due in late 2003 but in the event did not take place until the end of July 2004. Furlong granted Verry two extensions of time to 2 February 2004 but Verry maintained they were entitled...
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21st December 2004Balfour Beatty Construction v Serco Ltd [2004] EWHC 3336 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Mr Justice Jackson, Technology and Construction Court 21 December 2004 In considering the question of whether an employer is entitled to set off liquidated damages against monies payable to a contractor under an adjudicator's award, the court must consider the adjudicator's decision: where it followed from an adjudicator's decision that the employer is entitled to recover a specified sum of money by way of LADs, then the employer could set that off against the sums payable to the contractor as a result of the adjudicator's decision; however, where the entitlement to LADs has not been determined, either expressly or impliedly by the adjudicator, then the question of the employer's entitlement to set off depends upon the terms of the contract...
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7th December 2004Collins v Baltic Quay [2004] EWCA Civ 1757This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a party has wrongfully withheld monies under a construction contract by failing to issue a valid notice of withholding, and the parties have entered into an arbitration agreement, any application by the claimant to the court for payment of those monies will be stayed under s9(4) of the Arbitration Act 1996 (unless the arbitration agreement is null and void, inoperative, or incapable of being performed); there is nothing in s111 of the Housing Grants Construction and Regeneration Act that requires such claims to be dealt with by the court. Even if a withholding notice is not served, the claim for payment still constitutes a "dispute or difference" that needs to be determined. The question of whether a "dispute or difference" has arisen for the...
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6th December 2004Stratfield Saye Estate Trustees v AHL Construction Ltd [2004] EWHC 3286This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court held that for a construction contract to be in writing and therefore comply with section 107 of the Construction Act, all the express terms of the contract had to be in writing. It is not sufficient for only the material terms of the contract to be in writing. However, not all of the express terms have to be contained within the same document. In this case, the contract and the scope of the works were said by the court to be sufficiently evidenced in writing by letters, drawings and minutes of a meeting. The Trustees of the Stratfield Saye Estate ("the Estate") engaged AHL Construction Ltd ("AHL") to carry out restoration works to a derelict property belonging to the Estate called Heckfield Wood House. Prior to commencement of the works,...
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29th October 2004Emcor Drake v Costain [2004] EWHC 2439This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes For an adjudicator to reconsider facts and matters that have been previously adjudicated upon is not in itself objectionable. In this case the second adjudicator had not been invited to trespass on the first adjudicator's decision, nor did he do so. Furthermore the necessity to respond quickly to vast quantities of paperwork is one of the well-known hazards of the adjudication process and is not of itself a ground for finding that there has been an abuse of process. Judge Richard Havery QC, Technology and Construction Court 29 October 2004 The defendant ('CSJV') was the main contractor for the refurbishment of the Great Western Royal Hotel at Paddington. The claimant ('EDS') was a principal sub-contractor. The parties entered into a sub-contract...
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28th October 2004Amec Capital Projects Ltd v Whitefriars City Estates [2004] EWCA Civ 1418This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator in a construction dispute is required to afford procedural fairness to the adjudicating parties. One aspect of this is that the adjudicator must not, to the fair-minded and informer observer, give the appearance of being biased in favour of one party or the other. The central issue in the unusual case of Amec Capital Projects Ltd v Whitefriars City Estates Ltd was whether an adjudicator had failed to act impartially, and thereby denied one party its right to natural justice. Court of Appeal; Kennedy, Chadwick and Dyson LJJ 28 October 2004 The relevant facts were as follows. Amec was engaged by Whitefriars to carry out construction work at a development in Central London. The contract between the parties was an amended JCT Standard...
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28th October 2004Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWCA Civ 1535
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19th October 2004CIB Properties Ltd v Birse Construction [2004] EWHC 2365This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Common sense should be applied when deciding whether a dispute had crystallised. The complexity of a claim referred to adjudication will not prevent the enforcement of an adjudicator's award, providing that the adjudicator could reach a fair decision in the light of the time limits agreed between the parties. In the event that an adjudicator makes a slip in his decision and refuses to correct it, it would not be open to the court's review. His Honour Judge Toulmin CMG QC, Technology and Construction Court 19 October 2004 Birse Construction Limited ("Birse") was the main contractor for works to be carried out at a new building owned by CIB Properties Limited ("CIB") under a contract dated 8 August 2000. CIB terminated the contract on 21 December...
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29th September 2004Ruttle Plant Hire Ltd v Secretary of State for the Environment, Food and Rural Affairs [2004] EWHC 2152 (TCC)
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27th July 2004A&S Enterprises v Kema [2004] QBD HT 04 199This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The content of the adjudicator's decision in which he criticised the non-availability of a representative of the employer for a meeting, together with his actions during the course of the adjudication, was felt by the court to be evidence that there was a real possibility of bias on his part and that he was therefore in breach of the requirements of natural justice. As a result his decision was not enforced. His Honour Judge Seymour QC, Technology and Construction Court 27 July 2004 A & S Enterprises Ltd ("A&S") were employed by Kema Holdings Limited ("Kema") to develop a site in Derbyshire. In July 2003, the parties entered into a JCT Standard Form with Contractor's Design 1998 contract with various amendments. Following the non-payment...
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15th July 2004Roscco Civ Eng v Dwr Cymru Cyfyngedic [2004] TCC HT-03-190This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes On the enforcement of an adjudicator's decision a party can be estopped from denying the adjudicator's jurisdiction if that party had earlier represented that the adjudicator had jurisdiction or that there was a common understanding between the parties to that effect. Also, an adjudicator can order the referring party to make a payment to the responding party if it is implicit in the referred dispute that the adjudicator is required to decide the responding party's entitlement and/or under paragraphs 13 and 20 of the Scheme (when it applies). Recorder Dermod O'Brien QC, Technology and Construction Court 15 July 2004 Rossco Civil Engineering was a partnership carrying on business as civil engineering contractors ("the Partnership"). Welsh Water ("WW")...
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25th June 2004Connex S.E. Ltd v MJ Building Services Group [2004] EWHC 1518
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11th June 2004William Verry Ltd. v North West London Communal Mikvah [2004] 1 BLISS 24This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator makes an error in his decision that is within his jurisdiction but potentially vitiates his decision, the Courts may order a stay of enforcement of that decision pending the outcome of a future adjudication on the same issues. Judge Anthony Thornton QC, Technology and Construction Court 11 June 2004 William Verry (“Verry”) was engaged by North West London Communal Mikvah (North West) to carry out certain building works on the JCT standard form of contract, private with quantities, 1998 edition. A dispute arose between the parties as to the valuation of works and an adjudicator assessed the sum that would be due under a certain Interim Certificate. After the adjudicator issued his decision in that adjudication,...
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28th May 2004Alstom v Jarvis (No2) [2004] EWHC 1285This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes For the purposes of the Scheme, in the context of the contract in question, the "value of work" was that which the paying party considered to be due under the contract having taken account of answers to queries. Determining what sum is due under the contract does not generally involve the issue of a withholding notice. The party making the payment can still establish what is truly due or to be paid by use of the appropriate contractual procedure or proceedings. HHJ Humphrey Lloyd, London TCC. 28 May 2004 Alstom employed Jarvis as its subcontractor for works under the I Chem E Model Form for Process Plants – Sub Contracts, with bespoke amendments. Jarvis were to be paid the cost of the works and a management fee, and the contract...
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12th May 2004McAlpine PPS Pipeline Systems Joint Venture v Transco Plc [2004] EWHC 2030 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This recent case in the TCC provides useful guidance on the nature of a dispute referred to adjudication and the conduct of the adjudicator who is appointed to determine it. Judge John Toulmin QC, Technology and Construction Court 12 May 2004 Transco plc (“Transco”) engaged McAlpine PPS Pipeline Systems Joint Venture (“McAlpine”) to carry out works in relation to the construction of 37 km of steel pipeline in Kent. The contract incorporated the NEC standard form of contract. A dispute emerged concerning McAlpine’s entitlement to interest on payments for compensation events. The matter was referred to adjudication. McAlpine issued its notice of referral to adjudication on 17 November 2003. In the notice, McAlpine said...
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5th April 2004AWG Construction Services Ltd v Rockingham Motor Speedway Ltd [2004] EWCH 888This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator has no jurisdiction to decide issues not referred to him for a decision within the referral notice. Without prejudice to this principle, a party must have a sufficient opportunity to consider any new material that is submitted during the adjudication. Where a decision relates to a number of disputes, the decisions on unchallenged claims should be enforced immediately. Judge John Toulmin QC, Technology and Construction Court 5 April 2004 Rockingham Motor Speedway (“Rockingham”) entered into a contract with AWG Construction (“AWG”) for the design and construction of a new racing track, building and a grandstand, and certain tunnels, near Corby in Northamptonshire. At the track’s first meeting,...
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5th April 2004Conor Engineering Ltd v Constructions Industrielles de la M̬diterran̬e (CNIM) [2004] EWHC 899This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The primary activity on site is a matter of fact in each case Рhere it was found to be the incineration of waste. Even if an adjudicator's decision prescribed a "final date for payment" of the sums awarded in that decision erroneously in fact or in law, the decision would not be invalid as a result. Where an adjudicator orders that payment be made within x days of his decision, the time for payment runs from the date the decision is said to be made and not the date it is received by the parties. Recorder David Blunt QC, London TCC 5 April 2004 Les Constructions Industrielles de la Mediterranee (CNIM) SA ("CNIM") was the main contractor employed by Hampshire Waste Services Ltd to design, build and deliver a plant for the incineration...
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26th March 2004Daraydan Holdings Ltd v Solland International Ltd [2004] EWHC 622 (Ch)
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19th March 2004Gleeson v Devonshire Green Holdings [2004] TCC01504This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The parties are obliged to ensure that the Adjudicator's award is given effect. Withholding notices need to be served prior to adjudication and to be considered and dealt with as part of the adjudication. It would defeat the purpose of adjudication if an adjudicator's decision could be defeated by a withholding notice in respect of events which occurred subsequent to the commencement of the adjudication. HHJ Gilliland QC, QBD (TCC) Salford District Registry 19 March 2004 DGH engaged MJG to do work under a JCT 1998 With Contractor's Design standard form (with amendments). A dispute arose as to MJG's entitlement to payment pursuant to interim application number 31 and was referred to adjudication. The payment mechanism is set...
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12th March 2004Buxton Building Contractors Ltd v Governors of Durand Primary School [2004] EWHC 733This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Whilst an adjudicator is perfectly entitled to direct that given the nature and size of a dispute it is better dealt with by way of written submissions alone, he must himself ascertain the applicable facts and law. It is incumbent on him to identity fully all the issues that have arisen and to consider the submissions of both the disputing parties. A failure to do so may render his decision invalid both because he may fail to decide the dispute referred to him and because his decision may be intrinsically unfair. Judge Anthony Thornton QC, Technology and Construction Court 12 March 2004 A JCT contract was entered into whereby Durand Primary School (the "School") engaged the contractor Buxton Building Contractors Limited ("Buxton") to construct...
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27th February 2004Specialist Ceiling Contractors v ZVI Construction [2004] 4T-0006 1 Leeds 00.03.2004This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator that receives "without prejudice" correspondence will still be able to proceed with the adjudication if it he acts in an objectively unbiased manner. Judge S P Grenfell, Technology and Construction Court 27 February 2004 Specialist Ceiling Services Northern ("SCSN") were engaged by ZVI Construction (UK) Limited ("ZVI") under a DOM/2 subcontract to carry out works at the Holiday Inn in Bradford. Disputes arose involving variations, extensions of time, delay, and loss and expense. During attempted negotiations to reach a resolution, ZVI made a without prejudice offer to settle the account. SCSN rejected this offer and commenced adjudication, claiming £400,000 from ZVI. In the referral notice SCSN referred...
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27th February 2004Amec Capital Projects Ltd v Whitefriars City Estates Ltd [2004] EWHC 393 (TCC)
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20th February 2004Bath & North East Somerset D.C. v Mowlem Plc [2004] EWCA Civ 115
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20th February 2004Westminster Building Company Ltd. v Beckingham [2004] EWHC 138This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudication procedure was found to have been incorporated into a contract for refurbishment works despite the fact that the defendant had not signed the contract. The defendant was deemed to have accepted the contract by conduct since he had failed to object to the content of the contract and allowed the claimant to continue with the work. Judge Anthony Thornton QC, Technology and Construction Court 20 February 2004 The claimant tendered for extensive refurbishment works to a property owned by the defendant. The work was described in a specification and associated drawings prepared by a firm of chartered surveyors employed by the defendant. Part 1 of the specification, entitled "General Conditions of Contract", defined the parties to the contract...
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23rd January 2004BAL (1996) Ltd. v Taylor Woodrow Construction Ltd [2004] HT 03 337This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes His Honour Judge Wilcox, Technology and Construction Court In determining whether the procedure adopted by an adjudicator is consistent with the principles of natural justice, a court can have regard to the acquiescence to the procedure of the parties by omission or conduct. However, in order to maintain confidence in the adjudication system, acquiescence will only be relevant to the issue of a breach of natural justice if it is "clear, informed and unambiguous." 23 January 2004 The claim arose out of a project for remedial works to Nationwide Anglia Property Services Limited, Corporate Headquarters. The claimant ("BAL") and the defendant ("Taylor Woodrow"), respectively sub-contractor and contractor, entered into a sub-contract...
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16th January 2004IDE Contracting Ltd v RG Carter Cambridge Ltd [2004] EWHC 36This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes When referring a dispute to adjudication pursuant to Paragraph 2 of the Scheme the notice of adjudication has to come before the referring party can request the person named in the contract to act as adjudicator, unless he has already indicated to the parties that he is unwilling or unable to do so. If the named adjudicator indicates that he is unable to act then provided the indication is made to all parties, the referring party can proceed under Paragraph 6(1)(b) to request the nominating body to select a person to act as adjudicator. It was unnecessary for the defendant to show actual prejudice. Technology & Construction Court. HHJ Havery QC16 January 2004 A dispute arose between the parties in relation to certain construction works...
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15th December 2003London & Amsterdam Properties Ltd v Waterman [2003] EWHC 3059This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An hourly rate is a sensible and reasonable yardstick for determining an adjudicator's fees. If a dispute has crystallised on liability but details of quantum have not been provided then it can still be said that a dispute embracing both quantum and liability has arisen. "Ambush" by way of the submission of late evidence may result in a breach of natural justice if the other party is not given an opportunity to comment on it. An adjudicator should not proceed with a referral at all costs - if natural justice cannot be achieved then the adjudicator should abandon the referral. Waterman was engaged by LAP under a Deed of Appointment (the "Contract") as the structural and civil engineering consultants for the construction of a...
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1st December 2003Galliford Try Construction Ltd v Michael Heal Associates Ltd [2003] EWHC 2886This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The decision of an adjudicator, which is based on the conclusion that there was a contract between the parties, will not be enforceable if subsequent legal proceedings determine that this conclusion was wrong. Judge Richard Seymour QC, Technology and Construction Court 1 December 2003 MH was engaged as structural engineer to provide various pre-tender services in connection with a project to convert a hotel into residential apartments. G successfully tendered as design and build contractor for the project. After completing the services required under the pre-tender appointment, MH was well placed to secure an appointment to provide post-tender structural engineering services. MH provided some further engineering services while negotiations...
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21st November 2003Pegram Shopfitters v Tally Weijl [2003] EWCA Civ 1750This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where parties have agreed to enter into a construction contract, but there is disagreement as to the terms of the adjudication procedure under the construction contract, it is open to a party who reserves its position to defend enforcement proceedings of the adjudicator's decision on the basis that the adjudication proceeded under the wrong rules. Court of Appeal. May and Hale LJJ, Hooper J 21 November 2003 In this case the Court of Appeal reversed the decision of HHJ Thornton QC in Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] BLR 296. The first instance decision is noted elsewhere in Adjudication Watch. To recap on the relevant facts: A shop refurbishment project was commenced without a contract having been signed. After...
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12th November 2003Rupert Morgan B.S.Ltd v David & Harriett Jervis [2003] EWCA Civ 1563This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where, in a written construction contract, there is a 'system of certificates' and the paying party fails to give an effective withholding notice in respect of a certified sum, that sum is payable in full. Over-certification can and should be corrected in the next certificate. Overpayments might be recovered in court or arbitration proceedings. Court of Appeal 12 November 2003 The Claimants ('the Builders') were engaged by the Defendants ('the Clients') to carry out work on their cottage. The Clients appointed an Architect. There was a written contract incorporating standard terms provided by the Architecture and Surveying Institute ('the Contract'), which was treated as a construction contract under the HGCR Act 1996. The...
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29th October 2003Simons Construction Ltd v Aardvark Developments Ltd [2003] EWHC 2474 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator fails to issue his decision within the appropriate time then this will not of itself mean that the decision is not binding upon the parties. Time may be of the essence for issuing his decision, but the parties have the ability to terminate the adjudicator's appointment if the time for issue of the decision expires without it being given and, if they do not, then they are likely to be bound by the adjudicator's late decision. TCC, Judge Richard Seymour QC29 October 2003 The parties were involved in a redevelopment project in Ely under a JCT Standard Form of Building Contract, with Contractor's Design 1981 Edition (incorporating the JCT adjudication amendments). A dispute arose between the parties and was...
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28th October 2003Dean & Dyball v Kenneth Grubb Associates [2003] EWHC 2465This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If a respondent denies it is liable to pay the claimant anything, then changes to quantum in the Notice from the quantum previously claimed will not of themselves mean that no dispute has crystallized at the time of the Notice. If an adjudicator follows an agreed procedure it will be difficult to show he has acted unfairly; conversely, if he has not followed the agreed procedure it may be relatively easy to show he has acted unfairly. HHJ Seymour QC, Technology and Construction Court 28 October 2003 D&D, a contractor, engaged an engineer, KGA, to design a tidal lock gate ('the Gate') to a marina. D&D said that the Gate was defective and claimed against KGA. D&D referred its claim to adjudication. The adjudicator...
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21st October 2003Thomas-Fredric's (Construction) Ltd v Wilson [2003] EWCA Civ 1494This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The question considered by the Court of Appeal was whether the parties in an adjudication were bound by the adjudicator's decision on the issue of whether he had jurisdiction to determine the dispute, one of the parties having claimed that the wrong party had been named as respondent in the adjudication. The Court of Appeal held that the parties would be bound if they had agreed to the adjudicator deciding the point, or if, in the absence of such agreement, the adjudicator's decision in that regard was plainly right. Simon Brown, Judge and Jonathan Parker LLJ,Court of Appeal21 October 2003 Thomas Fredric's entered into a building contract with Wilson for works which were then carried out and for which they received payment from Wilson. ...
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20th October 2003Hughes (JW) Building Contractors v GB Metalwork [2003] EWHC 2421This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a party had failed to raise the issue of non-receipt of certain documents in the adjudication, when invited to do so, it could not claim the adjudicator had infringed the rules of natural justice by failing to give that party the opportunity to consider and respond to documents. It is commonplace that certain documents come to light at a late stage in litigation and other dispute resolution procedures and are dealt with without any delay or adjournment proceedings. The Honourable Mr Justice Forbes, Technology and Construction Court The case arose out of a subcontract for the fabrication and erection of steelwork between the respondents, JW Hughes Building Contractors Ltd ('JWH') and the applicants, GB Metalwork Limited...
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29th September 2003M L Europe Property Ltd v Hurst Stores and Interiors Ltd [2003] EWCA Civ 1420
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19th September 2003Amec Capital Project Ltd v Whitefriars City Estate Ltd [2003] EWHC 2443
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10th September 2003Van Oord ACZ Ltd v Port of Mostyn Ltd [2003] BM350030 TCC
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4th July 2003Abbey Developments Ltd v PP Brickwork Ltd [2003] EWHC 1987 (TCC)
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1st July 2003Lovell Projects Limited v Legg and Carver [2003]BLR 452This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes For the terms of an adjudication clause to be unfair under the Unfair Terms in Consumer Contracts Regulations 1999, the clause must cause a significant imbalance of the parties' rights and obligations to the detriment of the consumer, contrary to the requirement of good faith. HHJ Mosley QC, Technology & Construction Court July 2003 This case concerned an application for summary judgment to enforce an adjudication award. L&C were residential occupiers for the purposes of the HGCRA 1996 ("the Act") with the consequence that the Act was inapplicable to the contract. However, the Standard Form of JCT Minor Building Works contract (with amendments 1 to 11) entered into by the parties incorporated provisions for adjudication similar to...
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25th June 2003Hurst Stores Ltd v M.L.Europe Property Ltd [2003] EWHC 1650HT 02 322This was one of those rare cases where the matter proceeded to court following an adjudication and where the Court overturned the adjudicator's findings. There was a dispute over the Hurst accounts. The Adjudicator had held that the Hurst account was of a binding nature and that no further claims could be made for events which occurred up to the date of the account. This effectively barred Hurst's final account in the sum of some ?2.5m. Hurst said that the documents should not be binding for two reasons. First, the project manager did not have authority to enter into such an agreement and second, the document was entered into on the basis of a unilateral mistake on the part of the project manager and the documents should be rectified so as to remove reference to full and final settlement of claims. Mr Recorder Reese QC agreed and so ML could not be allowed to place reliance on the documents...
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20th June 2003Barnes & Elliot Ltd v Taylor Woodrow Holdings Ltd [2003] EWHC 3100 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator fails to issue his decision within the timescale agreed between the parties this will not itself mean that the decision is not binding upon the parties. The court will consider the case on its facts and if the decision is only a day or so late decide that this delay is excusable as being within the tolerance and commercial practice that one has to afford to the legislation and to the contract. Judge Humphrey Lloyd QC, Technology and Construction Court 20 June 2003 The parties entered into a contract involving design, refurbishment and conversion work at a former psychiatric hospital near Epsom. The contract was subject to the conditions of the JCT 98 standard form with Contractor's Design. A dispute arose between the parties...
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16th June 2003RSL (South West) Ltd v Stansell Ltd [2003] EWHC 1390 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Judge held that the parties to an adjudication should be given the chance to comment on any material used by the Adjudicator in reaching his decision. If an extension was necessary for this to happen, the Adjudicator should have explained this to the parties. A party to a dispute resolution procedure has a legitimate expectation that he will be afforded opportunities promised to him to present his case. HHJ Seymour QC, Technology and Construction Court 16 June 2003 RSL engaged S to do construction work. The contract incorporated the provisions of the Standard Form of Domestic Sub-Contract DOM/2 1981 Edition with amendments. S accepted responsibility for delay to the commencement of its works on site and to subsequent...
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10th June 2003Bracken v Billinghurst [2003] EWHC 1333 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A sum tendered by a third party, in full and final settlement of an amount awarded by an adjudicator can, if accepted, prevent the party accepting the offer enforcing the adjudicator's award against the original contracting party. HHJ Wilcox, Technology and Construction Court 10 June 2003 Bracken entered into a building contract, using the JCT Minor Works form, 1998 edition. The Contractor was described as "Billinghurst of Advance Building Technology Ltd." A dispute arose as to the cost of additional works. The Contractor left site until Bracken agreed to pay for these. Bracken determined the Contract and referred the dispute to adjudication. The adjudicator had to decide the identity of the Contractor. Billinghurst...
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29th May 2003Shimuzi Europe Ltd v LBJ Fabrications Ltd [2003] EWHC 1229This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator's decision deals with a set off or withholding notice raised during the adjudication, that will not preclude the paying party from in the future raising a set off or withholding notice relating to matters that were not put before the adjudicator; where the parties had agreed the basis of their contractual relationship in the adjudication, the adjudicator had no jurisdiction to make his decision on a different contractual basis; the TeCSA Rules (1999 v1.3) did not prevent a party applying to the Court for a declaration that the adjudicator had acted outwith his jurisdiction in making the decision that he did. Technology and Construction Court, Judge Frances Kirkham Background The claimant (“Shimizu”) was the main contractor...
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22nd May 2003Orange EBS Ltd v ABB Ltd [2003] EWHC 1187 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A 'dispute' might arise as soon as a claim is made. Where a period of discussion or negotiation needs to pass before a claim crystallizes into a 'dispute', holiday periods count when determining whether sufficient time has elapsed. HHJ Kirkham, Technology and Construction Court 22 May 2003 Orange were engaged as sub-sub-contractors by ABB to carry out mechanical services work. On 2 December 2002 Orange advanced a 'Final Account' claim. The parties had not communicated since the sub-sub-contract was terminated about five months earlier. ABB had not seen parts of the claim before and the 'Final Account' was well over twice the value of Orange's previous application. On 12 December 2002, ABB said that it considered a...
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12th May 2003Galliford Northern Ltd v Markel UK Ltd [2003] Leeds District Registry QBDThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The right to an indemnity for the purpose of the Third Parties (Rights against Insurers) Act 1930 will only arise from an adjudicator's award once steps have been taken to enforce that award. Judge Behrens, Queens Bench Division (Leeds District Registry) 12 May 2003 The claims arose out of a construction project in Leeds in which G was the main contractor and MHA Ltd were consulting structural engineers. A dispute arose between the parties and was referred to adjudication. Throughout the adjudication MHA disputed the Adjudicator's jurisdiction on the grounds that no written contract was ever concluded. The Adjudicator decided that he did have jurisdiction and issued his award in favour of G. MHA went into voluntary liquidation. ...
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30th April 2003Comsite Projects Ltd v Andritz AG [2003] EWHC 958 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A clause conferring a foreign jurisdiction will not prevent a party from commencing an adjudication, so long as the contract in question is a "construction contract". The adjudicator's award will be enforceable by the English courts. HHJ Kirkham, Queens Bench Division (Birmingham TCC) 30 April 2003 C had entered into a building services sub-contract with A to install various services at a new wastewater treatment works and sewage-recycling centre at Sandown, Isle of Wight. Disputes arose between the parties. Clause 20 of the building services sub-contract provided that "All disputes arising in interpretation or execution of the present contract, its annexes or in connection with documents issued by both parties to the contract,...
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1st April 2003Trustees of Harbour of Peterhead v Lilley Construction [2003] CA 229/02This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes There was nothing in the terms of the contract to support the argument that, adjudication having taken place, a referral to arbitration was now precluded. Paragraph 23(1) of the Scheme for Construction Contracts recognises that arbitration can follow adjudication. It would be pedantic for the Court to require that a Notice of Dispute, let alone a Notice to Refer, be served before entertaining an application to stay for arbitration. Lord Mackay, Outer House, Court of Session 1 April 2003 L undertook construction works for THP on terms incorporating ICE6. The Scheme for Construction Contracts applied to the contract. L served a notice of adjudication on THP on 13 December 2001, and referred a dispute between the parties...
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20th March 2003Beck Peppiat Ltd v Norwest Holst Construction Ltd [2003] EWHC 822 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Judge held that the law is as stated in Sindall v Solland: "For there to be a dispute for the purposes of exercising the statutory right to adjudication it must be clear that a point has emerged from the process of discussion or negotiation that has ended and that there is something which needs to be decided". This did not conflict with the approach in Halki, and the word 'dispute' should not be given a specialised meaning for the purpose of adjudication. Mr Justice Forbes, Technology and Construction Court20 March 2003B entered into a sub-contract with N for construction work. N referred three issues to adjudication: (1) whether BP was entitled to a further extension of time, (2) the final evaluation of any loss and expense payable to BP, and...
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19th March 2003R. Durtnell & Sons Ltd v Kaduna Ltd [2003] EWHC 517 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A dispute cannot arise before an independent third party who is asked to decide an issue has reached his decision. A party would not be penalised for raising a jurisdiction point in enforcement proceedings unless it had knowingly elected not to raise it in the Adjudication. Judge Richard Seymour QC, Technology and Construction Court 19 March 2003 D undertook building work for K under a JCT 80 contract including amendment 18. Various disputes arose, some of which D referred to adjudication. The Adjudicator awarded D an extension of time and release of liquidated damages for loss and expense that had been withheld by K. K did not pay the whole sum awarded. D sought summary judgment for the amount outstanding. K argued that the Adjudicator had exceeded...
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6th March 2003Harvey Shopfitters Ltd v ADI Ltd [2003] TCCAn issue was raised as to whether the IFC Sectional Completion Supplement was imported into the agreement. Whether or not it was accepted did not affect the nature of the agreement nor determine whether or not the IFC Conditions were part of the Contract. The appropriate approach to the issues is as follows: the Courts now adopt a practical approach to whether and what agreement should be upheld; niceties which might on a more traditional approach have been regarded as precluding agreement will not now be so regarded unless essential to the basis of the agreement; this is the more so where the contract has been fully performed.
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14th February 2003Pegram Shopfitters v Tally Weijl [2003] HT 03/25Tally declined to pay the sum of ?95,483.78 plus interest and the adjudicator's fees arguing that there was no construction contract between the parties or if there was a contract, that the contract was different in content to the contract found to exist by the adjudicator. Pegram claimed that it was one based on its own conditions of sale whilst Tally claimed that it was one based on the JCT Prime Cost Standard Form of Contract 1998. There were no adjudication provisions in the Pegram standard terms thus on its case, the Scheme would apply. Here, HHJ Thornton QC found that the parties had entered into a construction contract in such a way that its terms were not clearly and unquestionably capable of being identified. The reason was that the negotiations consisted of a series of offers and counter offers. No complete set of contract documentation was identified. Therefore, the parties had...
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6th February 2003Checkpoint Ltd v Strathclyde Pension Fund [2003] EWCA Civ 84
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31st January 2003Dumarc Building Services Ltd v Mr Salvador Rico [2003] KT203081Epsom C.CThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An important purpose of statutory adjudications is to provide contractors with a fast-track method of obtaining funds to which they are apparently entitled, at least on a provisional basis. That purpose would be frustrated if owners could easily set-off moneys from amounts determined by an adjudicator to be owing. HHJ Hull QC, Epsom County Court 31 January 2003 This summary has not been prepared using the judgment, which is not yet available. An owner and a contractor entered into a contract using the JCT Minor Works form. The contract was for work at a residential home. Although residential building work is not subject to the operation of the HGCRA, the parties had agreed to amend the standard form so that disputes could be adjudicated as...
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28th January 2003Try Construction Ltd v Eton Town House Group Ltd [2003] EWHC 60 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes E argued that there had been a breach of natural justice because the adjudicator had used his own methodology without bringing significant issues to E's attention. However, the Judge held that an adjudicator is not limited to the material presented by the parties. He may take further information and apply his own knowledge and experience, having an absolute discretion to do what he considers necessary. The parties had also agreed to the adjudicator's appointment of a programming expert HHJ David Wilcox, Technology and Construction Court 28 January 2003 E engaged T under a JCT 98 contract to do conversion work. Delays occurred and T submitted several claims. Two claims for extension of time were rejected and referred to adjudication. The adjudicator's...
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24th January 2003Costain Ltd v Wescol Steel Ltd [2003] EWHC 312 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes There are 'different meanings or nuances of meaning' of 'dispute', as set out in Halki. On the facts of this case, a dispute had arisen as the claim had been made but not paid. HHJ Havery QC, Technology and Construction Court 24 January 2003 CL engaged WSL as a steelwork sub-contractor. The works were purportedly completed in July 2002. WSL entered administrative receivership in September 2002. On 24 September 2002 WSL said that its agents (C&B) would contact CL shortly to discuss the sub-contract. On 18 October 2002, without C&B apparently having contacted CL, WSL threatened to commence an adjudication in respect of its final account and extension of time entitlement, if CL did not pay WSL the requested sum by 11 November 2002. On...
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22nd January 2003Ferson Contractors Ltd v Levolux A.T. Ltd [2003] EWCA Civ 11This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A provision in a construction contract governed by the HGCR Act 1996, however clearly worded, that entitles a party to withhold against and/or not to pay an Adjudicator's decision because, say, the contract has been terminated, is inconsistent with the HGCR Act 1996 and therefore invalid. Court of Appeal 22 January 2003 The facts and decision at first instance are set out on page 114. The Defendant ('FC') appealed unsuccessfully from that decision. The Court of Appeal approved Judge Wilcox's finding that it was implicit in the Adjudicator's decision that the Claimant ('LAT') was entitled to suspend the works and the purported determination, based on LAT's wrongful suspension of the works, was invalid. FC relied upon a passage in the judgment of...
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15th January 2003Joinery Plus Ltd (in administration) v Laing Ltd [2003] HT 02/323This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A decision made by applying the wrong contractual terms may be made without jurisdiction. This is different from applying the wrong construction to contractual terms. If a party wishes to challenge the validity of a decision, it should not ask the adjudicator to correct it. HHJ Thornton QC, Technology and Construction Court 15 January 2003 J was engaged as sub-contractor to L for two different projects. One project was under JCT Works contract standard terms ("Admiralty") and the other was under a heavily amended DOM/2 contract ("Metropole"). Adjudication under Admiralty was in accordance with the JCT rules; Metropole contained no adjudication provisions so the Scheme for Construction Contract applied. Both projects were contentious and J referred...
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19th December 2002Picardi (Gennario Maurizio) (t/a Picardi Architects) v Cuniberti [2002] EWHC 2923 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In contracts with a residential occupier (to which HGCRA 1996 does not apply) adjudication provisions may be unenforceable if they are not fairly and properly brought to the client's attention and individually negotiated. His Honour Judge Toulmin CMG QC, Technology and Construction Court 19 December 2002 The Defendants ('the Cunibertis') engaged the Claimant Architect ('Mr Picardi') in connection with the refurbishment of their private dwelling house. The works cost in excess of £2m. A dispute concerning Mr Picardi's fees was referred to adjudication. The adjudicator decided that the Cunibertis should pay outstanding fees of £42,862, his fees of £5,760 plus VAT and interest. It was agreed that there could be no statutory right...
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6th December 2002Baldwins Industrial Service plc v Barr Ltd [2002] EWHC 2915 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes This was a contract for the supply of plant and labour. That the crane came with a driver was not incidental. B had hired the crane plus operator to undertake construction work. The contract was a construction contract within the HGCRA and the adjudicator had jurisdiction. As the party claiming was in receivership, a stay of execution of the judgment was granted, upon conditions of payment into court and prompt commencement of proceedings. HHJ Frances Kirkham, Technology and Construction Court (Birmingham) 6 December 2002 A (the claimant) hired a crane, together with a driver, to B (the defendant). The crane was damaged and A sought damages from B. The matter was referred to adjudication. The adjudicator rejected B's argument that he lacked jurisdiction...
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27th November 2002Carillion Construction Ltd v Devonport Royal Dockyard Ltd HT-02-395This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If a variation to the terms of a contract is agreed orally, this must be recorded or evidenced in writing, failing which an adjudicator will not have jurisdiction to decide disputes arising under the oral agreement. There was also no dispute; the defending party had asked for more information about the alleged breach of contract which the referring party had not supplied. HHJ Bowsher QC, Technology & Construction Court 27 November 2002 D employed C as a sub-contractor. It was agreed that C would be paid its actual cost plus accruals and a fee. There was an agreed target cost, but this was amended several times. On 30 October 2001 representatives of D and C met to discuss revisions to the payment provisions. C believed that it had been agreed...
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15th November 2002Cowlin Construction Ltd v CFW Architects [2003] EWHC 60This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party who accepts that an adjudicator has jurisdiction in relation to a dispute cannot go back on that in a subsequent adjudication. Challenges to jurisdiction should be made at the earliest opportunity. There was a contract evidenced in writing even though not all terms had been agreed and recorded in writing. HHJ Kirkham, Technology and Construction Court, Birmingham 15 November 2002 Cowlin were employed as a design and build contractor and CFW acted as its architect for a project to rebuild servicemen's housing for the MoD. CFW ceased work in August 2001 and wrote to Cowlin claiming payment of outstanding invoices for which no Withholding Notice had been served. In a pre-emptive strike, Cowlin submitted a Notice of Adjudication seeking a declaration...
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28th October 2002Surplant Ltd v Ballast Plc (T/A Ballast Construction South West) [2002] EWHC TC33/02
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28th October 2002Guardi Shoes Ltd v Datum Contracts [2002] 5816 OF 2002This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The contractor has a contractual right to be paid unless the employer has served the appropriate notice specifying his complaint (a notice to withhold payment). G had not taken the opportunity to serve such a notice. It could not say that the presentation of a petition in the circumstances of the case was an abuse. Ferris J, High Court of Justice Chancery Division 28 October 2002 G engaged D in relation to refurbishment and fitting out of a shop. The work was completed but some snagging items remained to be done, which D was happy to undertake at its own expense. G said that the defects were substantial and it had lost confidence in D, so would not let D do any further work. G informed D it would not be making further payments under the contract...
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25th October 2002Bovis Lend Lease Ltd v Triangle Development Ltd [2002] EWHC 3123 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes For a withholding to be made against an Adjudicator's decision, an effective withholding notice must have been given, which was adjudicated upon, and the Adjudicator's decision, or another Adjudicator's decision, suggests the party can withhold. His Honour Judge Thornton QC, Technology and Construction Court 2 November 2002 The Claimant ('Bovis') agreed to refurbish and fit out three Victorian schoolhouses into 43 luxury flats for the Defendant ('Triangle'). The contract incorporated the JCT Standard Form of Management Contract, 1998 edition. The following order of events occurred: A dispute arose concerning two interim certificates which Bovis referred to adjudication; Bovis said it was terminating the contract because Triangle had engaged new...
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18th October 2002Yorkshire Water Services Ltd v Taylor Woodrow Construction Northern Ltd [2002] EWHC 2140 (TCC)
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14th October 2002Debeck Ductworth v T&E Engineering Ltd [2002] BM250063This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If a claimant seeks to say that a contract is evidenced in writing pursuant to Section 107(4) of the 1996 Act, he will have to show that the writing evidences the whole of the agreement, not part of the agreement. RJT Consulting Engineers v DM Engineering Northern Ireland Limited followed Her Honour Judge Kirkham, Birmingham District Registry 14 October 2002 T&E entered into a contract to install air conditioning services for Eli Lilly Pharmaceuticals in Basingstoke. Debeck entered into an oral subcontract with T&E whereby Debeck agreed to undertake work of installation of ductwork for £27,000 plus VAT. The work was to be undertaken in two stages, a first fix and a second fix during March and April 2001. Debeck sought to recover the...
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15th August 2002Hitec Power Protection BV v MCI Worldcom Ltd [2002] EWHC 1953This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudication can only occur if a "dispute" has arisen. If there is no dispute, any decision made by an adjudicator may be rendered unenforceable. Although it is not always easy to do, a critical matter to address before kicking-off an adjudication will be: is there a dispute? HHJ Seymour QC, Technology and Construction Court 15 August 2002 H entered into a purchase framework agreement with W and its "participating affiliates", under which W could order the design, supply and installation of certain switch gear from H. The framework agreement provided that if a purchase order was placed by W, or any of its "participating affiliates", the resultant contract would be on particular terms, including that the Scheme for Construction Contracts under...
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8th August 2002Levolux A T Ltd v Ferson Contractors Ltd [2002] EWCA Civ 1382
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31st July 2002Pring & St Hill Ltd v C J Hafner (t/a Southern Erectors) [2002] EWHC 1775 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator under the Scheme cannot run related disputes in parallel without the consent of the parties. An adjudicator who has acted in a previous adjudication involving one of the parties may be biased and act contrary to natural justice if there is a chance that he will apply knowledge from a previous adjudication to the dispute before him. HHJ Humphrey LLoyd QC, Technology and Construction Court 31 July 2002 P, a main contractor, brought an application for summary judgment to enforce the decision of an adjudicator in its favour against SE, its subcontractor. The adjudication was under the Scheme for Construction Contracts. P had brought the adjudication following an adjudicator's award against it brought by the employer. P was seeking by this...
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28th July 2002Herschel Engineering Ltd v Breen Properties Ltd [2000] BLR 272This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a court has ordered summary judgment enforcing an adjudicator’s decision, the defendant will not be able to obtain a stay of execution on the ground that the claimant does not and may not have the money to repay the sum awarded if repayment was subsequently ordered in the final determination of the dispute by a court or arbitrator, unless the claimant is insolvent or of doubtful insolvency, in which case a stay may be ordered. His Honour Judge LLoyd QC – Queen’s Bench Division, Technology and Construction CourtBackground The claimant obtained summary judgment enforcing a decision of an adjudicator. The defendant then applied for a stay of execution of that judgment on the ground that recent searches on the Companies...
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3rd July 2002J.T.Mackley v Gosport Marina Ltd [2002] EWHC 1315This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Section 108 HGCRA 1996 does not of itself create a right to refer a dispute, once decided by an adjudicator, to arbitration. Where reliance is placed on an arbitration clause in a contract, the ability to commence an arbitration and how this should be done falls to be determined by that arbitration clause Seymour QC 3 July 2002, TCC G contracted M to carry out certain land reclamation works at a marina. The contract incorporated the ICE conditions of contract with certain amendments. Clause 66 of the conditions concerned the settlement of disputes. It provided that a dispute arose when one party served on the engineer appointed under the contract a notice in writing, stating the nature of the dispute. It also provided that every such dispute should...
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2nd May 2002Impresa Castelli SpA v Cola Holdings Ltd [2002] EWHC 1363 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes On the facts of this case and the particular dispute resolution clause, a party was not bound to adjudicate before proceeding to arbitration or litigation as the adjudication provisions related to works which were ongoing and not to events after termination. HHJ Anthony Thornton QC, Technology and Construction Court 2 May 2002 CH employed IC as the main contractor under a JCT 1981 Edition with Contractor's Design, to construct a large four star hotel in London. The contract sum was for £10.35m. The parties were in dispute from an early stage and the project was subject to delay. In early 2000 some of the disputes were referred to adjudication. In August 2001, IC instituted its own legal proceedings for loss and expense and CH counterclaimed....
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18th April 2002R.G.Carter Ltd v Edmund Nuttall [2002] HT-02-121This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court has no power to revoke the appointment of an adjudicator or to appoint a new adjudicator in his place. At most the Court will make a declaration as to the validity of an adjudicator's appointment. Judge Bowsher QC 18 April 2002, TCC R entered into a sub-contract with E incorporating the DOM/1 provisions in about September 1999 for the construction of concrete works to the sub-structure and the building frame and ancillary works for a new Heritage Centre and Library in Norwich. The sub-contract contained contractual provisions for adjudication that complied with the requirements of HGCRA 1996. Between July 2000 and November 2001 there were three adjudications. A fourth dispute then arose about extensions of time and claims for loss and...
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12th April 2002Martin Girt v Page Bentley [2002] EWHC 2434This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The rules of natural justice apply to adjudications, but the mere fact that an adjudicator has not complied with those rules does not mean that his or her award is unenforceable. What matters is whether the breach of natural justice had a prejudicial effect on the party opposing the enforcement of the determination. HHJ Wilcox, Technology and Construction Court 12 April 2002 G entered into a contract with B to provide labour-only plastering works at a building in Scotland. A dispute arose as to the amount owing to G for performing those works. The dispute was referred to adjudication. The Adjudicator determined the dispute in G's favour, awarding it some £53,000 if G could produce a VAT certificate to B, and some £18,000 if G could...
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12th April 2002Parsons Plastics (Research and Development) Ltd v Purac Ltd [2002] EWCA Civ 459This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If the contract terms provide for it, a party may be entitled to set-off a counterclaim where a contract is not governed by HGCRA against an adjudicator's decision if that counterclaim has not been determined by the adjudicator. LJ Pill, LJ Mummery and LJ Latham, Court of Appeal, Civil Division 12th April 2002 Purac were the main contractors under a contract for the design and construction of a sewerage plant. Purac entered into a written sub-contract with Parsons for the supply of an odour control package at the works. Purac became dissatisfied with Parson's lack of progress and in an attempt to expedite matters made a payment direct to Parsons' steel supplier. Purac then declined Parsons' application for payment 3 under milestones of Schedule...
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12th April 2002Balfour Beatty v Mayor & Burgess of L.B. of Lambeth [2002] BLR 288 : [2002] EWHC 597This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A critical path analysis is necessary for an adjudication concerning extensions of time and the deduction of liquidated damages to be carried out methodically and fairly. However, an adjudicator who constructs the referring party's case for it and does not give the responding party reasonable opportunity to comment upon the case it has to meet is not acting fairly and impartially and his decision will not be enforced H Lloyd QC 12th April 2002 The parties entered into a contract for the refurbishment of a building that incorporated JCT standard terms. B was granted three extensions of time. However, two certificates of non-completion were issued, which entitled L to claim damages for delay. B claimed it was entitled to further extensions of time...
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25th March 2002Chamberlain Carpentry & Joinery Ltd v Alfred McAlpine [2002] EWHC 514 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes What constitutes a "single dispute" is a question of fact. It is possible that a substantial dispute with a number of different elements may constitute a "single dispute" R Seymour QC 25 March 2002, TCC A sub-contracted C to carry out various works in relation to a hotel. The Sub-Contract entitled either party to refer any dispute to adjudication in accordance with the Housing Grants, Construction and Regeneration Act 1996 and in accordance with the Alfred McAlpine Special Projects Adjudication Rules (June 2000 Edition). These Rules provided that the referring party may give written notice of his intention to refer any dispute arising under the contract to adjudication; that such notice must set out and provide the nature and description of the...
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21st March 2002Edmund Nuttall Ltd v R G Carter Ltd [2002] EWHC 400 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Whilst a dispute can be about a "claim", there is more to a dispute than simply a claim which has not been accepted. For there to be a dispute, there must have been an opportunity for the protagonists to consider the whole package of arguments advanced and the facts relied on by each side and to formulate reasoned arguments. Whilst a refinement of the arguments may not alter fundamentally the "dispute", a party cannot abandon wholesale facts or arguments and contend that because the "claim" remained the same the "dispute" remains the same. If the dispute does not remain the same an adjudicator appointed in relation to the reformulated dispute acts without jurisdiction R Seymour QC, Technology and Construction Court 21 March 2002 C engaged N under...
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11th March 2002Jamil Mohammed v Dr Michael Bowles [2002] 394 SD 2002This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court allowed the successful party in an adjudication to serve a statutory demand against the losing party. Although the contract was in respect of residential premises, the parties had agreed to resolve disputes by adjudication. The losing party's complaints about jurisdiction were insufficient to show that the debt was disputed on substantial grounds. Registrar Derrens [unknown court] Unknown date, reported on Building website 14 March 2003 M entered into a contract with B to carry out works at B's house. Although the contract was with a residential occupier, the contract provided for adjudication of disputes. B commenced adjudication, claiming that the works had not been completed satisfactorily. M disputed the adjudicator's jurisdiction. The...
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8th March 2002RJT Consulting Engineers Ltd v DM Engineering Ltd [2002] EWCACiv 270This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The material terms of the relevant agreement must be sufficiently recorded in any one of the forms prescribed by s107 HGCR Act 1996 for the requirements of that section to be met and for the agreement to constitute a "construction contract". Court of Appeal (Auld LJ, Ward LJ, Robert Walker LJ) 8 March 2002 The facts and the decision at first instance are set out on page 68. The claimant, R, appealed from that decision. On appeal, the court found in favour of R. In his judgment, LJ Ward found that the judge was wrong to conclude that it was sufficient for the purposes of s.107 HGCR Act 1996 for there to be merely evidence supporting the existence of an agreement. Even that was correct, however, the documents relied on in this case were wholly insufficient....
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27th February 2002Gibson v Imperial Homes [2002] FWHC 676 QBAT 1353This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A person may sue on a contract entered into in the pre-formation stage of a company on his own behalf and on the part of the company under s.36C(1) of the Companies Act 1985. The Adjudicator's jurisdiction therefore extends to cover circumstances where an adjudication is commenced by such a person. John Toulmin QC, Technology and Construction Court 27 February 2002 A company, CD, applied for planning permission to develop a property in London. A further company, CN, wrote to I at the same address as CD to confirm that it would be acting for the employer's agent on the development project. A reply sent on I's headed paper, confirmed CD's appointment, but asked that invoices or accounts be made out in the name of CD as the property was in that name. CN...
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26th February 2002Total M&E Services v ABB Technologies [2002] EWHC 248 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party's costs of an adjudication cannot be recovered as damages for breach of contract. Risk of failure to pay in the event that the court, in full litigation, disagrees with the adjudicator's decision can be taken into account in determining whether a stay of enforcement of the decision should be granted, but the party seeking the stay must produce compelling and uncontradicted evidence of that risk. HHJ David Wilcox, Technology and Construction Court 26 February 2002 AB entered into a sub-contract for electrical installation works with T. There were no provisions in the contract for any work beyond that described in the contract or payment for such work. Substantial works beyond the original scope of the works were performed by T. AB accepted...
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15th February 2002Solland v Daraydan Holdings [2002] EWHC 220HT 01/481This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Generally, an adjudicator's decision will be enforced and summary judgment will not be withheld on the basis that the defendant has a cross claim equalling or exceeding the amount awarded by the adjudicator Judge Seymour QC, Technology and Construction Court 15 February 2002 The contractor S agreed to undertake the design, construction and refurbishment of a property for D on the terms of Conditions attached to the Building Contract. The Conditions incorporated the Scheme for Construction Contracts and provided that "the Adjudicator's decision is binding until the dispute is finally determined by the Courts." The Conditions also stated that there would be liquidated damages of £15,000 per week. In a separate furnishing contract, S agreed to...
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15th February 2002Ashley House v Galliers Southern Ltd [2002] TCC 15.02.2002
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14th February 2002Earls Terrace Properties Ltd v Waterloo Investments Ltd [2002] HT 02/237 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Housing Grants, Construction and Regeneration Act 1996 cannot be made to have retrospective effect if a construction contract, made before the Act came into force, is subsequently varied by an agreement that itself does not fall within the Act as a construction contract. Any adjudication commenced under that Act in relation to such agreement is therefore void and the adjudicator has no jurisdiction to act. Seymour QC 14 February 2002 W entered into an Agreement dated 4 December 1996 to provide development, construction and a range of related services for E. The Agreement was varied on 20 July 1998 by another agreement described as a Deed of Variation. With one exception (of no significance here) this Deed of Variation altered the provisions concerning...
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31st January 2002C & B Scene Concept Design Ltd v Isobars Ltd [2002] BLR 93 TCC
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31st January 2002C & B Scene Concept Design Ltd v Isobars Ltd [2002] EWCA Civ 46This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Procedural, factual or legal errors do not in themselves mean that an adjudicator has exceeded his jurisdiction. Court of Appeal (Potter, Rix LJJ and Sir Murray Stuart-Smith) 31 January 2002 The facts and decision at first instance are set out on page 74. The claimant, CB, appealed from that decision. On appeal I did not appear and was not represented. Consequently, Sir Murray Stuart-Smith (with whom the other judges agreed) proceeded on the assumption – without deciding it - that the Recorder was correct that the adjudicator had erred and addressed only the issue as to whether the adjudicator had therefore acted outside his jurisdiction. The judge approved the formulation of the principles to be used to determine whether an adjudicator has...
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17th January 2002Shimuzi Europe Ltd v Automajor Ltd [2002] BLR 113HT 01/427This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator has jurisdiction to make a mistake provided he asks himself the questions that have been referred to him. If a party invites the adjudicator to correct mistakes in his decision under the slip rule and makes payment of part of the amount awarded by the adjudicator it will be found to have elected to forego any opportunity it might otherwise have had to object to the decision Judge Seymour QC, Technology and Construction Court 17 January 2002 Under the JCT Form of Contract With Contractor's Design (1998 ed) as amended, S, as contractor agreed to undertake for A, the employer, the design and construction of business work space in London. The agreement incorporated the TeCSA Rules. S issued an Adjudication Notice for various matters...
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11th January 2002Watkin Jones v Lidl UK GMBH [2002] HT 02/121This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes There is a dispute once money is claimed unless and until the Defendant admits that the sum is due and payable. Passive failure to admit suffices to constitute a dispute.HHJ Moseley QC at the Cardiff Technology and Construction Court11 January 2002By a JCT Standard Form of Building Contract with Contractor's Design 1998 Edition incorporating various amendments, W agreed to demolish existing structures and construct a retail store for Lidl. Practical completion occurred on 22 June 2001.On 17 July 2001 W submitted an application for payment no. 11 which it alleged was an application for an interim payment under the contract. Lidl made no payment and W served a Notice of Adjudication referring what they alleged was a dispute within the meaning of...
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27th December 2001Watkin Jones v Lidl UK GMBH [2001] HT 01/465This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Clause 30.3.3 of JCT98 WCD means that an Employer who wishes to say that sums are not due should serve a notice stating what is due. Failure to do so will mean that the Contractor is entitled to the sum for which he applied pursuant to Clause 30.3.5. HHJ Humphrey Lloyd QC, Technology & Construction Court 27 December 2001 L entered into a JCT 1998 Contract with Contractor's Design with WJ in respect of a new retail store in Bangor. In accordance with the contract WJ made an application for payment for the net sum of £340,182.24 (plus VAT). L appeared to have mistakenly treated the application as a valuation for final account and did not serve the notice required under the contract stating which amounts were due and did not pay any money...
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11th December 2001Discain Project Services Ltd v Opecprime Developments Ltd No3 [2001] EWHC TCC 450
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30th November 2001Isovel Contracts Ltd v ABB Technologies Ltd [2001] CH.Div HC 00 004450
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23rd November 2001Jerome Engineering v Lloyd Morris [2002] ITC 00221This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Adjudicator's failure to follow the correct procedure did not make the interim award unenforceable because he had addressed the right question. In construing a Notice to Refer Disputes to Adjudication, it is permissible to have regard to the background known to the parties. His Honour Judge Cockroft, Technology & Construction Court (Leeds) 23 November 2001 J sub-contracted LM to carry out mechanical and electrical installation work. The contract incorporated the standard DOM2 Without Design Conditions of Contract. Clause 38A provided for an adjudication procedure. Disputes arose concerning variations and valuations, and J served Notice of Intention to Refer to Adjudication and formally referred the matter to Mr Maxwell McCoy. The adjudicator...
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4th October 2001Oakley (William) v Airclear Environmental Ltd [2001]This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Absent a contract, it may nonetheless be possible to ground an adjudicator's jurisdiction by showing an ad hoc adoption by the parties of adjudication as a dispute resolution mechanism by way of an estoppel by convention Etherton J, Chancery Division 4 October 2001 S&N employed Oakley and nominated AEL as mechanical and air-conditioning sub-contractors. No formal sub-contract was concluded. Oakley deducted loss and expense and other sums from AEL's stage payments. AEL said that Oakley could not do this because there was no sub-contract. Oakley asked the President of the RICS to appoint an arbitrator to resolve the dispute, citing clause 35B of NAM/SC (which would have been incorporated if there was a sub-contract). AEL approached the RIBA to...
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2nd October 2001Robert McAlpine (Sir) v Pring St Hill [2001] TCC 779This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's decision under the JCT contracts is likely to be enforced, and a stay will not be granted, in circumstances where the defendant has a counterclaim which is the subject of an adjudication if no effective withholding notice has been served. The sum awarded by the adjudicator will be treated as an amount due under the contract. Moseley QC 2nd October 2001, TCC R was the main contractor for the construction of a building and engaged P as sub-contractor on JCT standard terms. The contract provided for the referral of disputes to an adjudicator and that the parties would give effect to the decision of the adjudicator. The adjudicator found that P had damaged glass, which had already been installed by R, during the sub-contract works and...
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27th September 2001Paul Jensen Ltd v Stavely Industries [2001] WN 101245This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Adjudicator was entitled to his fees, where he decided that he did not have jurisdiction and did not proceed with the adjudication. There was no suggestion of default or misconduct. It did not matter that he may have been wrong in concluding that he had no jurisdiction. District Judge Donnelly at Wigan County Court 27 September 2001 This case arose from a referral by S of a dispute between them and Salford City Council to Paul Jensen, of the Claimant company (PJL), to act as Adjudicator. Mr Jensen was asked to consider whether he had jurisdiction to hear the adjudication and he dealt with this matter as a preliminary issue. Mr Jensen took the view that he did not have jurisdiction to hear the adjudication. S alleged that the Mr Jensen was wrong...
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26th September 2001Pro-Design v New Millenium Experience Co Ltd [2001] LV 190224This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudicator's powers were constrained under the HGCRA to decide on issues related only to the construction work. Whilst claims under the HGCRA should normally go through, there is no overriding objective upon the court to ensure that fraudulent claimants should benefit from their fraud. His Honour Judge MacKay, Technology and Construction Court, Liverpool 26 September 2001 NME entered into a sub-contract with PD for PD to construct lighting systems in the Millennium Dome. A dispute arose over the sums due to PD and was referred to adjudication. NME refused to pay the sums decided on by the adjudicator and PD applied for summary judgment. The Judge refused the application for summary judgment, and commented that this matter was likely to proceed...
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19th September 2001Durabella Ltd v Jarvis.J & Sons Ltd [2001] 1998 ORB 33 TCC
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29th August 2001Britcon (Scunthorpe) v Lincolnfields [2001] HT 01/259This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes It was not for the Judge to decide whether the adjudicator was right as a matter of law or in evaluating the evidence submitted. His Honour Judge Thornton QC, Technology and Construction Court 29 August 2001 L engaged B to carry out infrastructure works. L failed to make the final payment and B issued notice of adjudication, seeking a decision as to whether payment should be made based on an interim valuation certificate. L argued that, pursuant to an oral collateral agreement made by the parties' representatives prior to the principal contract being made, the money was held in an Escrow Account and could not be released until certain works were substantially complete, and in any case, it had incurred direct losses which it was seeking to recover...
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13th August 2001Parsons Plastics v Purac Ltd [2001]This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If the contract terms provide for it, a party may be entitled to set-off a counterclaim where a contract is not governed by HGCRA against an adjudicator's decision if that counterclaim has not been determined by the adjudicator. LJ Pill, LJ Mummery and LJ Latham, Court of Appeal, Civil Division 12th April 2002 Purac were the main contractors under a contract for the design and construction of a sewerage plant. Purac entered into a written sub-contract with Parsons for the supply of an odour control package at the works. Purac became dissatisfied with Parson's lack of progress and in an attempt to expedite matters made a payment direct to Parsons' steel supplier. Purac then declined Parsons' application for payment 3 under milestones of Schedule...
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8th August 2001Stubbs Rich Architects v W H Tolley Ltd [2001] BP001105This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An Adjudicator's fees can only be challenged under the JCT Adjudication Agreement if the Adjudicator has acted in bad faith. The hours worked by the Adjudicator here were not excessive given that the Adjudicator acted as investigator and judge. Recorder Lane QC, Gloucester County Court 8 August 2001 This was an appeal by S, the Architect, from a first instance decision awarding WHT, a building contractor, the sum of £1,175 plus interest fees and costs. T entered into two separate JCT Agreements for Minor Works with Torridge District Council. Disputes arose between T and the Council on both Agreements. The disputes were referred to adjudication under the provisions of the JCT contracts and an Adjudicator was appointed from S. An Adjudicator's...
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3rd August 2001Millers v Nobles Construction Ltd [2001] TCC 64/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A letter recording an oral agreement may be sufficient evidence of a contract for the purposes of s107 of the 1996 Act even if it has not been authorised by both parties. Deductions from monies otherwise payable under a construction contract – whether by way of set-off or abatement - are not permissible unless a s111 notice has been served. HHJ Gilliland, Salford County Court 3 August 2001 M applied for summary judgment on the grounds that N had no real prospect of successfully defending the claim. M claimed for payment for goods and joinery services supplied to N under 10 separate invoices. Each invoice stated that payment was due 30 days after the invoice was issued. M contended that the contract between the parties was a "construction...
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30th July 2001Yarm Road Ltd v Costain Ltd [2001] HT01228 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A novation agreement made after the HGCR Act 1996 came into force which novates rights and obligations under a construction contract made before the HGCR Act 1996 came into force constitutes a construction contract within the meaning of section 104 HGCR Act and the parties to it are therefore entitled to refer a dispute to adjudication. However the Court's decision in this case is not to be taken as deciding that sections 109-113 of the Act have a retrospective effect HHJ Richard Havery QC, Technology and Construction Court 30 July 2001 The application before the court was for a declaration sought by Y that it was entitled to pursue two disputed monetary claims against C by way of adjudication as provided for by the HGCR Act 1996. The question...
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27th July 2001David McLean Housing Contractors Ltd v Swansea Housing Association Ltd [2001] EWHC 830 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's decision is a decision concerning the parties' rights and obligations under the contract and does not create a debt in its own right. As a consequence, it is possible to serve a valid withholding notice against an adjudicator's decision and to withhold sums from amounts awarded by the adjudicator. HHJ Lloyd QC, Technology and Construction Court 27 July 2001 D contracted with S to redevelop the former head post office in Swansea to provide housing. The contract was based on the standard form JCT 81 with Contractor's Design. Practical completion was achieved late in July 2000 and a payment application, no. 19 was made in autumn 2000, claiming money for direct loss and expense, money for the valuation of variations, measured work and...
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24th July 2001Gibson Lea Retail Interiors Ltd v Makro Ltd [2001] BLR 407This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In this case, shop fitting works were not "construction operations" under HGCRA 1996 since the fittings supplied were not "fixtures". HHJ Seymour QC, Technology and Construction Court 24 July 2001 M employed G to undertake the supply and installation of shop fittings in four stores. The work for each store had a separate contract and in each case was formed by M's acceptance by an order of a quotation submitted by G. The items supplied and installed were fixed to ensure they would be stable; however the moveable nature of the equipment supplied by G was emphasised. G rendered various invoices to M in respect of the works which were not paid by M. G sought a declaration by way of summary judgment that the works forming the subject of contracts between...
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18th July 2001Green (Barrie) v GW IBS Ltd & G&M Floorlayers Ltd [2001] LE014261 Leicester CC
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26th June 2001Bickerton Construction Ltd v Temple Windows Ltd [2001] BM 1500 27This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The scope of the adjudicator's jurisdiction stems from the Notice of Adjudication, and determination of the final account had been expressly excluded from it. He had no jurisdiction to determine the gross valuation figure from which to deduct payments already made and sums which B was entitled to withhold. Her Honour Judge Frances Kirkham, Technology & Construction Court, Birmingham County Court 26 June 2001 B engaged T to carry out work under a construction contract based on the DOM/2 form. B determined the contract due to concerns regarding progress and lack of quality of materials and workmanship, and engaged others to complete the work and remedy defects in T's work. B gave notice of adjudication on the basis that disputes had arisen between...
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22nd June 2001Mecright v Morris [2001] HT 01 84This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In an Adjudication conducted pursuant to the Scheme, the jurisdiction of the Adjudicator derives from the Notice of Adjudication which may not be cut down or enlarged upon by matters referred to in the Referral Notice or other documents submitted during the course of the Adjudication. The scope may be enlarged by agreement or if it is a matter arising under the relevant contract which the Adjudicator considers is necessarily connected with the dispute. His Honour Judge Richard Seymour QC, Technology and Construction Court 22 June 2001 Morris subcontracted the design, fabrication, supply and erection of structural steel work, roof decking and walling cladding at a retail park in Staffordshire to Mecright. The Scheme for Construction Contracts applied. After...
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15th June 2001Sindall Ltd v Abner Solland [2002] Con LRHT 01/129This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes 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...
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1st June 2001Faithful & Gould Ltd v Arcal Ltd [2001] Case No: E190023 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator must be a natural person acting in his personal capacity, however, there is no rule which says he must sue for his fees in his own name. Technology and Construction Court (Newcastle Upon Tyne District Registry) 25 May 2001 Two applications were heard: the first related to the Defendants' contention that the Claimant's claim should be struck out as disclosing no cause of action. Their case was that the adjudicator, G, sued for his fees under the name of the company where he was employed rather than in his personal capacity and the role of an adjudicator must be carried out by an individual. The judge rejected this, seeing no reason why G, who happened to work in a company that administered his fees, should have to sue for his fees...
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31st May 2001Fence Gate Ltd v James R Knowles Ltd TCC 25/01 SF102200 [2001]This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes 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...
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22nd May 2001A De Gruchy Holdings Ltd v House Of Fraser (Stores) Ltd [2001] TCC. HT 00 -186
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15th May 2001Re A Company (number 1299 of 2001) [2001]This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication In the absence of an s111 withholding notice, it is not possible to advance an abatement or set-off against the sum demanded (even if defective work was not apparent at the time a notice should have been given). A winding-up petition based on a statutory demand for a sum due may be restrained where the cross-claim is genuine and serious, exceeds the sum due and is one which the company has been unable to litigate. Deputy HHJ David Donaldson, Chancery Division CCL was the main contractor in the construction of 4 houses and engaged a roofing sub-contractor, GAL. CCL terminated GAL's contract after about 2 months and left outstanding the sum of £9,702.47 on 2 valuations. GAL served a Statutory Demand on the alleged debt. CCL sought a final injunction to prevent GAL...
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9th May 2001RJT Consulting Engineers Ltd v DM Engineering Ltd [2002] BLR 217HHJ MacKay considered an application for a declaration that the agreement between the parties was not an agreement in writing as provided for by section 107 of the HGCRA. HHJ MacKay said that section 107 was an inclusive not an exclusive piece of legislation. The purpose of the act was to bring in agreements which would not be caught otherwise by the act to enable parties to construction agreements to take advantage of the procedure set out in the act. The material between the parties by way of written subsidence (i.e. such as to evidence the agreement in writing) was "comparatively great". If it were necessary to insist upon a recitation of the agreement when the existence of the agreement, the parties to the agreement, the nature of the work and a price of that agreement are clearly to be found in documentary form then this would be contrary to the terms of the HGCRA.
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20th April 2001Farebrother B.S. Ltd v Frogmore Investments Ltd [2001] SF101587This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Under the TeCSA Adjudication Rules 1999, the adjudicator can rule on his own jurisdiction and the scope of the adjudication. Such decision would be binding on the parties. The approach in KNS Industrial Services v Sindall was approved. HHJ Gilliland QC, Technology & Construction Court 20 April 2001 FI employed FBS as a building contractor. A dispute arose over the extension of time due to FBS, and FBS submitted this dispute to adjudication under the TeCSA Adjudication Rules (1999). FBS's notice of adjudication sought an extension of 22 weeks together with additional payment for loss and expense. FBS' subsequent referral notice sought a longer period of time. FI alleged that FBS was in critical delay and sought to set off other sums by way of...
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11th April 2001Austin Hall v Buckland Securities Ltd [2001] HT 00 477This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudication is not subject to the Human Rights Act 1998. An adjudicator is not a public authority since he is not a tribunal deciding legal proceedings. Further, the Court should also take into account the Court enforcement proceedings when considering if there has been a breach of a Convention right HHJ Bowsher QC, Technology & Construction Court 11 April 2001 B employed A to carry out building works on the terms of the JCT Agreement for Minor Building Works. B did not pay A's final account so A referred the dispute to adjudication. The adjudicator found in A's favour. A applied for summary judgment to enforce the adjudicator's decision. This was the first "frontal assault" on adjudication under the Human Rights Act 1998 ("HRA"). B resisted...
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11th April 2001Discain Project Services Ltd v Opecprime Developments Ltd No2 [2001] EWHC TCC 435This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes HHJ Bowsher QC, Technology & Construction Court Where there has been a substantial and relevant breach of the rules of natural justice, and where an objective bystander could conclude that the adjudicator was or may be biased, the Court would refuse to enforce his decision. 11 April 2001 This is the Court's judgment following a full trial of the dispute concerning the enforceability of the adjudicator's decision, after the Court refused summary judgment (see page 46 above). The Court invited the adjudicator to be joined to the action. The adjudicator did not so wish, but he was called by the Court as a witness so that he could be cross-examined by both parties, and he also filed written submissions. The complaint about the adjudicator's conduct...
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7th March 2001Joseph Finney Plc v Gordon & Gary Vickers [2001] HT 00/454This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An exchange of mutual promises is good consideration. The promise not to adjudicate is a promise of value, and could bind the parties HHJ David Wilcox 7 March 2001 F and V executed a building contract incorporating the terms of the standard form JCT 1980 edition as amended private with quantities. The works were the provision of further accommodation at V's hotel in Chester. A dispute arose between the parties relating to F's application for payment number 13 and the subsequent valuation and Architect's certificate. On 8 November 2000 the Architect certified that £347k was due. On 21 November V gave notice that they were withholding £347k on account of 14 weeks delay. F wrote to V on 22 November disputing the deduction and said that...
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28th February 2001Staveley Industries Plc v Odebrecht Oil & Gas HT01/052This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Structures which are, or are to be, founded on the sea bed below low water mark are not structures forming, or to form, part of the land for the purposes of s105(1) of the Housing Grants Construction and Regeneration Act 1996 HHJ Richard Havery QC, Technology & Construction Court 28 February 2001 The defendant O, sub-contracted certain works to the claimant, S for the supply and installation of fittings into steel modules which were being constructed in England. The modules were intended for use as living quarters for operatives of an oil platform in the Gulf of Mexico. They were to be towed to the location and welded onto platforms which were to be supported by legs founded in the sea bed. A dispute arose between the parties and S applied under...
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13th February 2001Glencot v Ben Barrett Ltd [2001] EWHC Technology 15This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Summary judgment would not be given automatically where an adjudicator had also acted in a mediation role between the parties, as there could be an arguable case of perceived bias of the adjudicator. HHJ Humphrey Lloyd QC, Technology & Construction Court. 2 and 13 February 2001 B appointed G under a sub-contract. Disagreement arose over sums due. G referred the dispute to an adjudicator and a meeting was scheduled for 29 September. Shortly before the meeting the parties agreed a settlement and informed the adjudicator. However, there were still disputes over discounts and the adjudicator agreed to assist on the basis that he would resume his role as if negotiations broke down. After some 6 hours a settlement figure was agreed but other points...
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13th February 2001Rainford House (in Receivership) v Cadogan [2001] HT 01/014This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party who admits that the claimant is entitled to judgment on an adjudicator's decision may be able to obtain a stay of execution if it can show credible evidence of the claimant's insolvency. HHJ Richard Seymour QC, Technology & Construction Court 13 February 2001 C employed R under a JCT contract, with Contractor's Design. The case concerned R's application to enforce the adjudicator's award to it of £77,350 by summary judgment. C disputed that R was entitled to judgment on one ground: that R was in administrative receivership, and therefore that it was inappropriate to enter summary judgment, relying upon the Court of Appeal's judgment in Bouygues v Dahl-Jensen. C said the appointment of the receiver indicated that R was, or probably...
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2nd February 2001LPL Electrical Services Ltd v Kershaw Mechanical Services [2001] HT 00/427This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where an adjudicator makes an error of law or interpretation this does not mean that he has acted in excess of his jurisdiction HHJ Richard Havery QC, Technology and Construction Court 2 February 2001 In this case K was seeking to defend L's summary judgment application under Part 24 of the CPR. K argued that the adjudicator, who had made a decision under HGCRA, did not have jurisdiction to decide how much was due for anything other than one specific application for payment. In this instance L claimed £70k in accordance with interim application number 8. If this sum was not due then they required a ruling on the amount that was in fact due. The wording of the contract payment mechanism was unusual. On analysis it seemed to say that the payment...
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19th January 2001Brenton A.J. v Palmer [2001] TCC 19.01.2001This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The adjudicator had made a decision which he was empowered under the Act to make, and if he had made any error in it, which in fact results in his having no jurisdiction, it was an error of fact which it was certainly within his jurisdiction to make. His Honour Judge R. Havery, QC, Technology and Construction Court 19 January 2001 M was engaged to supply and fit electrical equipment to the premises of either P or his company, L. The adjudicator, Dr Robert Gaitskill QC, ordered P to pay M £26,000 plus fees. During the adjudication, he was asked to consider whether he had jurisdiction to make an award, because the true party to the relevant contract was L, not P. The adjudicator decided as a question of fact that the contracting party was P. At...
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18th January 2001David Wilson Homes Ltd v Survey Services Ltd & Anor [2001] EWCA Civ 34
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12th January 2001Holt Insulation Ltd v Colt International Ltd [2001] LV01 5929 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Although references to an adjudicator may relate to the same matters arising out of contractual relations between parties they do not necessarily relate to the same dispute. The notice of referral must be closely examined to see if the dispute is the same. Judge Mackay, Liverpool District Registry Technology and Construction Court. Date unknown H sub-contracted work to C. C applied for interim payments during the course of the work. The amount due in respect of application number 10 was disputed. C argued that they were owed £110k. The matter was referred to an adjudicator and C requested that the adjudicator order "immediate payment of the balance of the sum due." The adjudicator decided that due to the terms of C's notice of referral his...
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12th December 2000ABB Zantingh v Zedal [2001] BLR 66This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes When considering whether works fall within the exemption in section 105(2) of HGCRA, the Court should consider the nature of the whole site, and ask what is its primary purpose. Here, works involved in the installation of power generators at a printing works did not fall within the exception and were construction operations. HHJ Bowsher QC, Technology & Construction Court 12 December 2000 Scottish and Southern Energy (SSE) agreed to construct diesel powered electricity generation stations for Mirror Group Publishing who were concerned about loss of power due to the "Millennium bug." SSE sub-contracted the design, build and maintenance of the power generation sites to ABB, who sub-sub-contracted with Z for supply, installation, labelling, termination...
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24th November 2000Harwood v Lantrode [2000] TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator's decision will be enforced even if the losing party has commenced proceedings for final determination of the dispute. Section 111 notices to withhold payment apply to equitable set-offs. A stay of execution was granted as a petition for liquidation had been presented. HHJ Seymour QC, Technology and Construction Court 24 November 2000 The nature of the dispute that was referred to adjudication is unreported, however on 13 October 2000 the Adjudicator issued his decision in favour of Harwood to the tune of £208,309.17. Lantrode refused pay and so Harwood brought this application to enforce the Adjudicator's decision. Lantrode resisted payment on the grounds that: to enforce payment would be an abuse of court process as Lantrode...
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9th November 2000Canary Riverside Development v Timtec International [2000] R.Ct of Justice 69/2000This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where a party seeks leave to bring adjudication proceedings but litigation has already been commenced against that party then leave may be refused where the subject matter of an adjudication is capable of being resolved by way of a defence and counterclaim to the litigation. Each case will depend on its own facts. Deputy Judge: Mr DKR Oliver QC, Royal Courts of Justice 9 November 2000 CRD engaged TI under a trade contract to carry out works on a riverside development. The procurement was by way of construction management. TI made 2 applications for payment under the Trade Contract for a sum totalling £285,300.44. CRD prepared and signed a cheque for that amount. CRD subsequently discovered that TI had gone into administration 2 days...
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16th October 2000Maymac Environmental Services v Faraday [2001] 75 Con LRHT 00/222This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Any points to be made about whether the adjudicator has jurisdiction to act should be made during the adjudication itself, otherwise the parties are likely to be found to have consented to the adjudication process and will be estopped from arguing the adjudicator had no jurisdiction in any enforcement proceedings. HHJ Toulmin QC, Technology and Construction Court 16 October 2000 M was a mechanical and electrical sub-contractor to F and applied for payment for works done. M only received part of the payment and so referred the payment dispute to adjudication under HGCRA 1996 and the Scheme. The adjudicator awarded the sum claimed by M plus interest. F refused to pay. M applied for summary judgement to enforce the adjudicator's decision in its favour. F...
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2nd October 2000Woods Hardwick Ltd v Chiltern Air Conditioning Ltd HT 00/28This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If there are significant departures from the Scheme's rules, the Court will not enforce the adjudicator's decision. Adjudicators should take care if they provide evidence for use in enforcement proceedings. A proper abatement is outside Section 111 and a notice to withhold is not required. HHJ Thornton QC, Technology and Construction Court 2 October 2000 W applied to enforce 2 adjudicator's decisions (from 2 different contracts) against C. For the first decision, C argued that the judgment should be stayed pending the trial of its action against W arising from another unrelated contract. The Court held that this was no reason to hold up payment of the adjudicator's award, and awarded judgment. C challenged the decision in the second adjudication...
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7th September 2000Cygnet Healthcare plc v Higgins City Ltd [2000] EWHC 00/285 (TCC)
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30th August 2000Elanay Contracts Ltd v The Vestry [2000] HT 00264This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudication is not subject to Article 6 of the European Convention on Human Rights because it does not involve a final determination of civil rights. HHJ Richard Havery QC, Technology and Construction Court 30 August 2000 E applied to enforce an adjudicator's award by summary judgment. However, it served a fully pleaded Particulars of Claim, including reference to terms of the contract. V served a Defence and Counterclaim. V also opposed the application for summary judgment. V's first argument was that if summary judgment was awarded, it would be estopped from relying upon issues raised in the Defence and Counterclaim in future proceedings. The Judge held that this was incorrect, on the basis that if there was to be an issue estoppel, the particular...
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24th August 2000Universal Music Operations Ltd v Flairnote Ltd [2000] HTT-00-224This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes In a project management contract, the project manager is merely acting as agent for the employer, so any contract made between the project manager and a contractor is deemed to be a construction contract within Part II of the HGCRA 1996 between the employer and the contractor. Wilcox J, Technology and Construction Court 24 August 2000 U owned a number of properties in London, and had used S as project managers when undertaking work on the properties. They used a contract described as an agreement for project management and management contracting services which provided for S to arrange execution of the contract by the contractor. A project was planned to refurbish a building in Chelsea. A draft agreement was discussed between U and S based on the...
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9th August 2000Discain Project Services Ltd v Opecprime Developments Ltd No1 [2000] BLR 402 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator can decide that a dispute has arisen, even if the due date for payment has not arrived. The Court may not enforce the adjudicator's award if the manner in which it has been reached breaches the rules of natural justice. HHJ Bowsher QC, Technology & Construction Court 9 August 2000 A dispute arose between the parties, and an adjudicator was appointed. The Scheme for Construction Contracts applied in the absence of any adjudication provisions in the contract. The adjudicator awarded sums to D, but O did not pay. D therefore applied for summary judgment of the sum awarded. O challenged the jurisdiction of the adjudicator, and raised arguments relating to natural justice. Firstly, O said the notice of adjudication was premature,...
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9th August 2000Whiteways Contractors (Sussex) Ltd v Impresa Castelli Construction Ltd [2000] EWHC Technology 67This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Although the adjudicator under certain contracts has no power to determine his jurisdiction, the parties may decide between themselves to extend his jurisdiction. In applying sections 110 and 111 of the HGCRA, there is no distinction to be made between set-off and abatement. HHJ Bowsher QC, Technology and Construction Court 9 August 2000 W was a plastering sub-contractor who was engaged by I in connection with a construction in London. The contract incorporated the terms of the standard form of contract for sub-contractors DOM/1. Article 3 and Clause 38 of those terms provide for disputes or differences between the parties to be referred to adjudication. W gave its notice to adjudicate by letter dated 13 January 2000. The adjudicator gave his decision...
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1st August 2000ABB Power v Norwest Holst Engineering Ltd [2000] EWHC Technology 68This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Section 105(2) of HGCRA construed quite broadly using a purposive approach to decide if any given contract constitutes an exempted construction operation. In this case, a contract to install insulation to clad pipework etc on a site where the primary activity was power generation was outside the scope of the Act. HHJ Humphrey LLoyd QC, Technology and Construction Court 1 August 2000 ABB placed an order with N to install insulation to clad pipework, drums and various other parts of the equipment at a site where ABB was building three new heat recovery steam generators (HRSGs) as part of a project to extend an existing power station. N was also to pre-fabricate the cladding material. There was a dispute about payment and N gave notice of adjudication...
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31st July 2000Bouygues UK Ltd v Dahl-Jensen UK Ltd [2000] EWCA Civ 507This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where one party is insolvent and the parties have claims against each other, summary judgment is not appropriate. The operation of rule 4.90 of the Insolvency Rules means that there is a real reason to dispose of the claims at trial. Court of Appeal (Peter Gibson, Chadwick and Buxton LJJ) 31 July 2000 The facts and decision at first instance are set out on page 14. B appealed from the decision of Dyson J on the ground that the adjudicator had decided a matter outside of his terms of reference. The Court dismissed B's appeal. The Court recognised that the purpose of section 108 of HGCRA 1996 was to provide parties with a speedy method of resolving disputes, which although not finally determinative, could be sued upon. Where an adjudicator had answered...
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27th July 2000Shepherd Construction v Mecright Ltd [2000] BLR 489 : 27.07.2000This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A settlement agreement may mean that there can be no disputes capable of referral to adjudication. A claim that an agreement was entered into under economic duress is not a dispute arising "under" the sub-contract. In appropriate circumstances, the Court will grant a declaration under Part 8 of the CPR. HHJ Humphrey LLoyd QC, Technology & Construction Court 27 July 2000 S brought a claim under Part 8 of the CPR seeking a declaration that the adjudicator appointed to investigate a dispute had no jurisdiction to do so. The Court approved the use of this procedure for such applications. M was S's sub-contractor on the Walsall bus station. Towards the end of the work, the parties were in dispute over the amounts of money due to M. On 15 March 2000,...
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24th July 2000George Parke v The Fenton Gretton Partnership [2001] CILL 1712This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-lawnow.com/adjudication F entered into an agreement with P to carry out building works at his premises. P refused to pay F's final account, alleging that the works were unfinished, there were no certificates of practical or final completion, snagging had not been done and delay. F commenced an adjudication. However, documents were not served on P at the correct address. When P received the documents, his solicitors sought an extension for submission of P's case, but F refused. The adjudicator proceeded, and awarded F £169,267. F then served a Statutory Demand upon P. P commenced court proceedings claiming that he had overpaid F, and thus that he challenged the adjudicator's decision. P sought to set the demand aside, but failed. P appealed. The Court found that the District Judge at first...
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21st July 2000Ken Griffin & John Tomlinson v Midas Homes Ltd HT-00-252This 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,...
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17th July 2000KNS Industrial Services Ltd v Sindall Ltd [2000] HT 00/164This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party has to accept or challenge a decision in full; it cannot pick and choose and say that some parts were without jurisdiction and rely upon the rest. An adjudicator may make an error in deducting sums where no notice to withhold has been served, but will not exceed his jurisdiction in so doing. HHJ Humphrey LLoyd QC, Technology & Construction Court 17 July 2000 K was S's sub-contractor, under a contract incorporating the DOM/1 standard terms, including an adjudication clause. There was also a right to determine the contract, and payment of valuations was due 28 days after receipt of the main contract payment certificate. Disputes arose between the parties over two of K's applications. K believed that it should have been paid by a certain...
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30th June 2000Nottingham Community Housing Assoc v Powerminster Ltd [2000] BLR 309This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court found that the maintenance and repair of gas appliances within buildings were "construction operations" within the meaning of section 105(a) of the Act. Hence, parties to such contracts should have a right to adjudication of disputes. Dyson J, Technology & Construction Court 30 June 2000 N owned community housing tenanted properties. It engaged P on a one year contract to carry out an annual service on each gas appliance in N's properties, and supply a repair and breakdown service. The gas appliances comprised central heating systems, fires and cookers. P rendered invoices to N for work done. N refused to pay, stating it had a substantial counterclaim. P purported to give notice of adjudication in relation to the non-payment. N commenced...
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21st June 2000R.G.Carter Ltd v Edmund Nuttall HT-00-230This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court held that a clause providing that a difference was not a dispute capable of reference to adjudication until mediation had taken place did not comply with Section 108 because a party has a right to adjudicate disputes (including differences) at any time. Such a clause attempts to postpone the right to adjudicate. HHJ Thornton QC, Technology & Construction Court 21 June 2000 C entered into a sub-contract with EN, incorporating the standard terms of sub-contract DOM/1. These contained an adjudication clause, clause 38A. A dispute arose concerning the appropriate method for valuing the work, which EN referred to adjudication. An adjudicator was appointed by the RICS, but C applied to the Court for an injunction to stop the adjudication...
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16th June 2000Christiani & Nielsen Ltd v Lowry Centre Dev Co Ltd [2000] HT 001/59 TCCThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The parties could not contract out of the HGCRA by stating that a Deed executed after 1 May 1998 takes effect from an earlier date. A party may waive the right to rely upon jurisdictional arguments in court if it does not raise them before the adjudicator. An adjudicator should investigate any jurisdictional challenge and give a non-binding decision HHJ Thornton QC, Technology & Construction Court 29 June 2000 The dispute arose when L deducted liquidated damages from sums otherwise due to C under a contract made by deed in December 1998, incorporating the ICE conditions, 5th edition. Work had commenced earlier, under a letter of intent dated 11 August 1997. The Deed stated that notwithstanding the date of its execution, it would take effect from...
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6th June 2000John Mowlem & Co Plc v Hydra-Tight Ltd [2000] HT 184This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A contract can allow for the adjudicator to be selected by one of the parties. A clause requiring a notice of dissatisfaction to be served prior to adjudication may be unlawful. It is permissible for the adjudicator to be appointed to be appointed by one party from a list drawn up when the dispute arises. HHJ Toulmin CMG QC, Technology & Construction Court 16 June 2000 In this case, the parties entered into a sub-contract which incorporated the core clauses and Option A clauses of the NEC Engineering and Construction Sub-Contract, plus the addendum "Y(UK)2" published in April 1998, together with some Additional Conditions of Contract, set out as Clause Z. These additional clauses provided that J had to appoint the adjudicator, from a list of...
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14th April 2000Herschel Engineering Ltd v Breen Properties Ltd [2000] HT 00/107This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A party can commence court proceedings, and then commence concurrent adjudication proceedings dealing with the same issue, provided that the court has not given final judgment. Commencing court proceedings does not operate as a waiver of the right to adjudicate. The Court commented that it may have granted a stay of execution if there was a doubt over H's ability to repay Dyson J, Technology and Construction Court 14 April 2000 The parties entered into a contract which provided that disputes would be referred to adjudication in accordance with the conditions set out in the "Construction Act 1996." B refused to pay two invoices submitted by H, and H issued proceedings in the County Court. B failed to file a Defence, and H obtained judgment. B successfully...
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14th April 2000Edmund Nuttall Ltd v Sevenoaks District Council [2002] HT 00 119This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An employer who does not give the requisite notice of withholding before deducting liquidated damages cannot rely on its claim for them as a reason not to pay an adjudicator's award. Since the adjudicator's power to correct his award was arguable, the claimant could not automatically benefit from an error in the adjudicator's calculations and summary judgment was refused Dyson J, Technology and Construction Court 14 April 2000 E issued an application for summary judgment of the unpaid balance of an adjudicator's award. The award was for £403,120, subject to "retention and LADs as may be properly deductible under the contract." The original award issued by the adjudicator did not take into account sums paid by S to date on interim payments,...
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14th April 2000Nordot Eng. Services Ltd v Siemens plc [2000] TCC SF 00901 TCC 16/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Parties can agree to abide by the decision of an adjudicator even if it is uncertain whether the contract in question is governed by HGCRA 1996 and the court will give effect to such an agreement. HHJ Gilliland QC, Technology and Construction Court 14 April 2000 N carried out works for S involving the provision of a gas turbine generating plant with exhaust gases used to provide steam generation in addition. The dispute between the parties was whether N was entitled to payment for various items of plant and equipment which it supplied and particularly whether there had been an agreement as to a particular set of rates or not. N referred the dispute to adjudication; S objected, contending the contract was not a "construction contract" within the meaning...
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12th April 2000Tim Butler Contractors Ltd v Merewood Homes Ltd [2000] TCC 10/00This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The question of whether a term or programme forms part of the contract is a dispute under the contract, and an adjudicator has jurisdiction to decide it. His decision will be binding upon the parties. Mr Justice Gilliland, Manchester District Registry 12 April 2000 M placed an order with T for construction work. Correspondence between M and T indicated that the total cost would be £26,118, "payment interim valuations pre-agreed 90% material on site 28 day payments", with 5% retention. T also sent M a programme showing work commencing on 27 July and ending week commencing 16 August. The first interim application was paid, but M refused to pay subsequent applications. No notices to withhold payment were served. M claimed that the contract period...
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11th April 2000Bridgeway Construction Ltd v Tolent Construction Ltd [2000] LVO 99069, TC 14100This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court may enforce provisions in a contract ordering the party referring a dispute to adjudication to bear all costs and expenses relating to it. Such a provision does not breach the provisions of the HGCRA 1996. Judge Mackay, Liverpool District Registry 11 April 2000 B was a groundworks sub-contractor engaged by T for works at a factory in Oldham. The sub-contract incorporated the adjudication procedure of the Construction Industry Council. However, T had amended this to state that the party seeking adjudication would be responsible for all costs and expenses related to the adjudication, whether or not it was successful. B commenced an adjudication claiming that T owed it unpaid sums. The adjudicator awarded B a final account sum, less...
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5th April 2000Bloor Construction (UK) Ltd v Bowmer & Kirkland (London) Ltd [2000] EWHC 183 (TCC)This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A term is to be implied into construction contracts that the adjudicator can correct accidental omissions or errors where such a correction would give effect to his first intentions. The Court cannot correct such error if the adjudicator refuses to do so. HHJ Toulmin, CMG QC - Technology and Construction Court 5 April 2000 BC was a sub-contractor to BK under a contract dated 18 November 1998, which included an adjudication clause. The main contract was in the JCT. 80 standard form incorporating the April 1998 amendments containing an adjudication clause. BC gave notice of its intention to refer a dispute to adjudication on 5 January 2000. The adjudicator was appointed and due to give his decision by 9 February 2000. He asked for a 14 day extension...
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24th February 2000Grovedeck Ltd v Capital Demolition Ltd [2000] EWHC Technology 139This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If there is no agreement in writing between the parties, an adjudicator will lack jurisdiction. An exchange of submissions under S. 107(5) can only constitute an agreement in writing and confer jurisdiction if it predates the notice of referral to adjudication. HHJ Bowsher QC, Technology & Construction Court 24 February 2000 G was a demolition sub-contractor undertaking work for C at two sites under oral agreements. C claimed it had not been paid sums due to it and suspended work. It gave notice to refer disputes under both oral agreements to adjudication. C argued that the adjudicator had no jurisdiction because the contracts were not in writing as required by Section 107 of the Act. The adjudicator found that he could not investigate the question...
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22nd February 2000Nolan Davis Ltd v Steven P Catton (No1) [2000] EWHC 590This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If parties agree to give the adjudicator the power to decide questions of jurisdiction, they will be bound by such election. In some circumstances, a director of a company may be personally liable where the company is not identified as the employer. HHJ Wilcox QC, Technology & Construction Court 22 February 2000 C was the managing director of a company known as Hazel Green Village Management Ltd. The company was based at a holiday village known as Hazel Green Village, and there were another 10 companies at the resort with similar names. C entered into a contract with N to demolish some units and carry out new build work. The contract was the Small Works Form published by the Architects and Surveyors' Institute. The employer was described in...
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18th February 2000Atlas Ceiling v Crowngate [2000] CILL 1639This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Court may conduct a trial on the issue of jurisdiction in place of a summary judgment application if it wishes to do so. The parties will not be held to have entered into a contract, even if one is signed, where important terms are not agreed and subsequent actions are inconsistent with the existence of an agreed contract. If a contract is entered into after 1 May 1998, even if it has retrospective effect, a right to adjudicate is implied. HHJ Thornton QC, Technology & Construction Court 18 February 2000 The question in this case was whether the contract had come into existence prior to 1 May 1998. The adjudicator believed that the Act did apply, and A tried to enforce the award. The Judge took an interesting approach to the question of...
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16th February 2000Workplace Technologies v E Squared Ltd & Mr J L Riches [2000] CILL 1607This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court commented that an injunction may not be available to prevent a party continuing with a void adjudication as there was no legal or equitable right to protect; also the balance of convenience may not favour the grant of an injunction. HHJ Wilcox QC, Technology & Construction Court 16 February 2000 E was engaged by W as a sub-contractor for work at the Bluewater shopping centre. The dispute centred on the value of an interim payment. E had submitted an interim application, and W had not served a notice specifying the sum due. E argued that the result of this was the amount of the application was the sum due. E served a notice of adjudication, but W argued that the contract did not contain the right to adjudicate because the contract came...
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1st February 2000Absolute Rentals v Gencor [2000] HT99-169This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Defendant's application for a stay to arbitration in defence of proceedings to enforce the adjudicator's award was refused on the grounds that there was no defence to the claim. An application to stay the judgment due to questions over of the Claimant's financial means was also refused HHJ Wilcox QC, Technology & Construction Court 28 February 2000 The parties entered into a building contract pursuant to the JCT Agreement for Minor Works 1980 edition. This contained no adjudication clause, so the Scheme applied. The contract did contain an arbitration clause. A applied to enforce the adjudicator's peremptory decision ordering payment of around £17,500 to it. G believed that it was entitled to apply for a stay to arbitration under section...
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28th January 2000Samuel Thomas Construction v J & B DevelopmentsThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes If works combine work relating to a dwelling with other works, the works may not "principally" relate to a dwelling, and be caught by the Act. A residential occupier does not have to be in occupation at the time of the contract, nor does the building have to be a dwelling at that time. HHJ Overend, Exeter District Registry 28 January 2000 J&B, a partnership formed by a husband and wife, purchased four barns in Devon. It intended to convert two of them, one for itself, and the other for sale. It engaged S to carry out building works. Disputes arose as S said that he had not been fully paid, and J&B claimed S was in delay. S terminated the contract, and asked for an adjudicator to be appointed. J&B said that the contract was one with...
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24th January 2000Northern Developments (Cumbria) Ltd v J & J Nichol [2000] EWHC Technology 176This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A matter that is not mentioned in a notice of intention to withhold payment is not something that the adjudicator can take into account as something necessarily connected with the dispute. The Scheme does not give the adjudicator power to award costs, but the parties can agree expressly or impliedly to give him the power. HHJ Bowsher QC, Technology & Construction Court 24 January 2000 N appointed J as sub-contractor to carry out works under sub-contract conditions DOM/2. N issued what purported to be a notice to withhold payment on the basis of delay and defective work, and J withdrew from site. N treated this as repudiation and appointed an alternative contractor. J issued an adjudication notice and the Scheme applied. N claimed that J's claim...
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13th January 2000VHE Construction PLC v RBSTB Trust Co Ltd [2000] EWHC Technology 181This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Sums cannot be set off against adjudicator's decisions. If a valid notice of intention to withhold payment is served, and then overturned by an adjudicator's decision, payment should be made within 7 days of the decision. HHJ Hicks QC, Technology & Construction Court 13 January 2000 V was the main contractor under a JCT. '81 contract with R. The payment provisions provided that V should submit a VAT invoice prior to payment of interim valuations. V served a notice of adjudication in respect of its interim application 4 for which it had served no VAT invoice and for which R had served no notice of intention to withhold. It sought full payment of that application which included sums for variations and loss and expense. The adjudicator made an award...
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4th January 2000Fastrack Contractors Ltd v Morrison Construction Ltd [2000] BLR 168This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator can enquire into his own jurisdiction, but his decision will not bind the parties and can be reviewed by the court. One dispute can encompass all claims, issues and contentions in issue when the reference was made. HHJ Thornton QC, Technology & Construction Court 4 January 2000 F was a brickwork sub-contractor to M. The work became delayed and the parties blamed each other. F applied for an extension of time; M said it would take some of F's work away; F threatened to take legal action. On 26 February, F submitted an interim application. M served a notice on 2 March saying it was going to monitor F's work. M then served a notice of payment on 10 March reducing several of the amounts claimed. It also said that third parties would...
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30th November 1999Sherwood & Casson Ltd v Mackenzie HT99000188This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court can examine a jurisdictional challenge on the basis that the dispute is the same or substantially the same as one previously referred to adjudication, but will only enquire if there are substantial grounds for showing the adjudicator erred. A claim for interim payment and a final account claim may not be the same. HHJ Thornton QC, Technology & Construction Court 30 November 1999 S was a sub-contractor to M, under a contract incorporating the provisions of JCT. '80. The sub-contract contained no adjudication clause so the Scheme for Construction Contracts applied. In the first adjudication, S sought payment of variations contained within an interim application and was awarded £6,631.30. It then submitted its Final Account which...
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18th November 1999Homer Burgess Ltd v Chirex (Annan) Ltd [2000] BLR 124 Outer CourtThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where parts of an award are valid, and parts made without jurisdiction, the Court may reduce the award and ask the adjudicator to decide which parts of the award were within jurisdiction. Lord MacFadyen, Outer House, Court of Session 18 November 1999 In his previous decision on the construction of the word "plant", Lord MacFadyen found that the adjudicator's decision was, to a substantial extent, beyond his jurisdiction, since much of H's contract was not a "construction contract" within the meaning of the Act. C had not maintained that the whole of the parties' dispute fell outside the adjudicator's jurisdiction, so the Court had to decide what order to make in relation to the small area that was within his jurisdiction. The Court had two options: reduce...
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17th November 1999Bouygues UK Ltd v Dahl-Jensen UK Ltd [1999] HT99000/99This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court will look at the subject of the reference to see whether the adjudicator has exceeded the terms of the reference but will give a fair, natural and sensible interpretation to his decision in the light of disputes that are the subject of the reference. The court should guard against characterising a mistaken answer to an issue that lies in the scope of the reference as an excess of jurisdiction. Dyson J, Technology & Construction Court 17 November 1999 D was the mechanical sub-contractor to B. The contract incorporated the CIC Model Adjudication Procedure (2nd edition). D began work on 15 April 1998, and B purported to determine the sub-contract on 8 July 1999. D issued its notice to adjudicate in August 1999 claiming sums for additional...
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10th November 1999Homer Burgess Ltd v Chirex (Annan) Ltd [1999] CA137/99This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes An adjudicator does not have jurisdiction over parts of a contract that are not for construction operations" although other parts may fall within that definition and be within his jurisdiction. An adjudicator's decision on his jurisdiction is not binding on the parties. Lord MacFadyen, Outer House, Court of Session (Scotland) 10 November 1999 H entered into a contract with C to carry out works at C's site. Disputes arose in relation to the sums due in respect of invoices which C refused to pay. H therefore issued a notice of adjudication, and, as the contract contained no adjudication provisions, believed that the Scheme would apply (although there was a debate over whether the Scottish or English Scheme applied which was not pursued in court). H...
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4th November 1999Linaker Limited v Riviera Construction [1999] Adj.L.R. 11/04
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29th October 1999Lathom Construction Ltd v Brian & Ann Cross [1999] CILL 1568 LTL 10/1/2000This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court may not enforce an adjudicator's decision over a compromise agreement which is not a "construction contract." HHJ Mackay, Technology & Construction Court 29 October 1999 AB engaged L for certain building works under JCT. '81. Upon a dispute arising over payment of interim payments, an adjudicator was nominated, but the parties were able to reach a settlement which was put into writing before he gave any decision. AB then wrote to L and said that it was a precondition of the settlement that £5,000 was to be withheld for work still to be carried out by L. As these works were not carried out, AB withheld the money. L then took this further dispute to adjudication. The same adjudicator was nominated. L argued that the settlement...
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6th August 1999Palmers Ltd v ABB Power Construction Ltd 1999 HT 99 0000 90This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes A contract can be partly for construction operations and partly for works not falling within that definition. Adjudication can only be sought for that part of the contract that is for construction operations. It is possible for the main contractor not to be entitled to seek adjudication when his subcontractor can. A notice to withhold must specify the amount withheld. HHJ Thornton QC, Technology & Construction Court 6 August 1999 P was a scaffolding sub-contractor appointed by A to provide scaffolding services at the site where A was assembling and erecting a HRSG boiler. P was a sub-sub-sub-contractor for part of a huge project involving plant to be used for power generation. A alleged that P had caused delay to its works, and purported...
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29th July 1999John Cothliff Ltd v Allen Build Ltd [1999] CILL 1530This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The Scheme does give power to an adjudicator to award costs, analogous to his case management powers of the Scheme, alternatively as an implied term necessary to give business efficacy to the Scheme HHJ Marshall Evans QC, Liverpool County Court 29 July 1999 J entered into a building contract with A. As the contract contained no express provision for adjudication, the Scheme applied. Upon a dispute arising, the adjudicator appointed made an award in J's favour. J also asked the adjudicator to determine payment of their costs of the adjudication, and the adjudicator awarded J 70% of its costs. A refused to comply with this part of the decision, and J issued an application for summary judgment. A argued that the Scheme did not give the adjudicator...
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16th July 1999Project Consultancy Group v Trustees of The Gray Trust [1999] HT/99/29This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Where there is a triable issue as to whether the adjudicator had power to make a decision, the court will not give summary judgment. A jurisdictional challenge should be raised at the outset, but a defendant may still take part in the process provided it is clear that this is without prejudice to this challenge. Dyson J, Technology & Construction Court 16 July 1999 P's claim for fees arose out of works performed for T for conversion of a property into a nursing home. It was not in dispute that if there was a contract, it was a construction contract within the meaning of Section 104 of HGCRA. T argued that if there was a contract, it was concluded prior to 1 May 1998 and therefore no right to adjudicate could be implied. Alternatively, T argued...
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23rd June 1999A&D Maintenance and Construction Ltd v Pagehurst Construction Services Ltd [1999] 64 Con LRThis summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The right to adjudicate survives determination of the underlying contract. A challenge to jurisdiction should be raised at the outset.HHJ Wilcox QC, Technology & Construction Court23 June 1999A was a sub-contractor to P, the main contractor, undertaking plumbing work at a school. No formal agreement was signed. A balance of A's invoices were not paid. P's contract was terminated, and it therefore terminated A's sub-contract on the basis of poor progress and defective work. Shortly afterwards, a fire broke out at the school, and the loss adjusters decided that this was due to defective installation of a boiler.A issued a notice of adjudication claiming payment of its outstanding invoices. P asked the adjudicator to suspend proceedings, on the basis...
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7th April 1999Straume Ltd v Bradlor Dev. Ltd [1999] CILL 1520This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes Adjudication is a "quasi legal proceeding" under the Insolvency Act 1986. HHJ Behrens QC, Chancery Division, Leeds District Registry 7 April 1999 A and B entered into a JCT. '80 contract in June 1998, incorporating amendment 18. On 3 March 1998, an administration order was made against B. The administrators believed that substantial sums were due under the contract, and served notices of adjudication. A served its own notices of adjudication against B, for just over the sum claimed by B. The question arose as to whether A required the leave of the court to bring the adjudication proceedings against B pursuant to Section 11 (3) of the Insolvency Act 1986: "During the period for which an Administration Order is in force, no other proceedings...
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15th March 1999Outwing Construction Ltd v H. Randell & Son Ltd [1999] BLR 156This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The court will abridge time for summary judgment under Part 24 CPR, provided the defendant is not prejudiced. HHJ Humphrey LLoyd QC, Technology & Construction Court 15 March 1999 O was a sub-contractor to H under a contract incorporating DOM/1. O claimed that the balance of its final account had not been paid; H said the work had not been done properly. O gave a notice of adjudication, and the adjudication took place under the Scheme for Construction Contracts as the contractual provisions did not fully comply with Section 108 of HGCRA. The adjudicator awarded O £16,096.98 and ordered that his decision be complied with peremptorily. H did not pay, and O threatened summary judgment. H responded with a notice of arbitration. O issued a...
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12th February 1999Macob Civil Eng. Ltd v Morrison Construction Ltd [1999] EWHC Technology 254This summary was provided by CMS Cameron McKenna LLP. For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes The correct approach to enforce an adjudicator's decision is a claim form and summary judgment. A defendant cannot elect to serve notice of arbitration to dispute the decision and at the same time argue that it is not an enforceable decision.Dyson J, Technology & Construction Court12 February 1999The first case in which the court considered the adjudication provisions of HGCRA. Macob entered into a sub-contract with Morrison to carry out groundworks. Macob alleged that Morrison failed to pay an interim application, and served a notice of adjudication. The contract did not comply with all the requirements of Section 108, and therefore the Scheme applied. The adjudicator found in favour of Macob, and ordered that his decision be complied with peremptorily....
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1st January 1970Linnett v Nicholson Case No. 9QT67607Claim by the adjudicator in the County Court for unpaid fees, allocated to the Small Claims Track. Defendant entered on the adjudication on a without prejudice basis on the basis that she never accepted adjudication as the dispute resolution procedure. CC judge following Linnett -v Halliwell was bound to conlcude that the defendant could not escape liability on the jurisdictional point. Defence that adjudicator had completely failed to deal with or even refer to her counterclaim failed, Defendant argued that the adjudicator could have sought payment of the full amount from the other party. Judge stated that the adjudicator had a wide ranging discretion as the parties were jointly and severally liable. Defendant also placed reliance on the fact that the other party in the adjudication failed to obtain summary judgment for monies due. That application was unsuccesful as an application...