Leeds City Council v Waco UK Ltd

On 20 February 2015 an adjudicator made a decision in favour of the defendant Waco UK Ltd (“Waco”) by which he ordered the claimant Leeds City Council (“LCC”) to pay £484,759.50 plus VAT in respect of an application for an interim payment (Application 21) on the ground that LCC had failed to serve the relevant notices in response to it. LCC did not pay and so Waco made an application for summary judgment in order to enforce the decision.

Summary judgment was not given; instead LCC was given leave to defend. However, this came at a price because a condition of obtaining leave was that LCC should pay, by 7 April 2015, the sum awarded to Waco by the adjudicator. LCC complied with this order. It then brought proceedings under Part 8 for a declaration that Application 21 was not a valid application and that the adjudicator’s decision was therefore wrong. This is the judgment on that application.

The basis for LCC’s claim is that Application 21 was issued prematurely on 22 September 2014, when it should have been issued on 28 September 2014. LCC submits that there is no entitlement under the contract made between LCC and Waco for applications for interim payments to be made on any dates other than those stipulated by the contract.

In fact, for reasons which are in dispute, Waco issued a further application for interim payment, Application 22, on the next valuation date, namely 28 November 2014, for precisely the same sum. LCC submits that Waco did this because it recognised that Application 21 was an invalid application. Waco denies this. It says that because no work had been carried out between 22 September and 28 November 2014, and because it had not been paid anything in the meantime, it considered that it was appropriate to submit Application 22 in identical form to Application 21 and so that is what it did. That application is the subject of a further declaration.

LCC was represented by Mr. Alexander Hickey, instructed by Pinsent Masons, and Waco was represented by Mr. Luke Wygas, instructed by Contract & Construction Consultants Ltd.

On about 16 March 2012 LCC entered into a contract with Waco in the form of a JCT Design and Build Contract, 2005 Edition, Revision 2 2009 as amended (the “contract”). By the contract Waco agreed to carry out the design, manufacture and installation of new factory assembled modular Classroom Buildings at Roundhay Primary School, Wetherby Road, Leeds.

The contract contained detailed provisions governing the contractor’s entitlement to make applications for interim payment. Between about April 2012 and Practical Completion, which occurred on 28 March 2013, Waco made applications for interim payments at approximately monthly intervals which were duly paid by LCC. As I explain in more detail later in this judgment, those applications were not made strictly in accordance with the terms of the contract. Nevertheless, Jacobs, LCC’s agent and contract administrator, ignored these irregularities and treated the applications as if they had been made on the correct dates.

The contract provided that after Practical Completion applications for interim payment should be made at intervals of two months rather than monthly. Waco made applications in April, July and September 2013, although these applications were, again, not made on the correct dates. However, initially Jacobs took no point on this. But they did object when Waco made an application on 26 November 2013, instead of 28 November. Waco thereafter re-submitted that application on 11 December 2013 and it was subsequently paid. The next application date was 28 January 2014, but Waco did not make its application until 11 February 2014 and submitted it the following day. Nevertheless, Jacobs certified that payment was due and LCC duly paid it.

Thereafter nothing happened until 18 July 2014 when Waco made a further application. Jacobs recommended that this application too should be paid (by a certificate dated 23 July 2014). On 22 September 2014 Waco made a further application, Application 21, but this time LCC did not pay it. That application was for £484,759.50. It was the subject of the successful referral to adjudication by Waco.

In the meantime, Application 21 having not been paid, Waco issued a further application, Application 22, for precisely the same sum on 28 November 2014, which was the correct application date. However, this time Jacobs issued a certificate constituting a payment notice dated 2 December 2014 stating that the amount due from LCC was nil.

LCC seeks a further declaration that this certificate was correct and that no money is due under Application 22.

Article 3, which concerned the Employer’s Agent, provided that the agent was to be Jacobs UK Ltd, who was to have:

“... full authority to receive and issue applications, consents, instructions, notices, requests or statements and otherwise to act for the Employer under any of the Conditions.”

Clause 4.7 provided as follows:

“Interim Payments shall be made by the Employer to the Contractor in accordance with section 4 and whichever of Alternatives A (clause 4.13) or B (clause 4.14) is stated in the Contract Particulars to apply.”

Clause 4.8 provided as follows:

“The amount due as an Interim Payment shall be an amount equal to the Gross Valuation pursuant to clause 4.13 or clause 4.14, whichever is applicable, less the aggregate of:

.1 any amount which may be deducted and retained by the Employer as provided in clauses 4.16 and 4.18 (“the Retention”);

.2 the cumulative total of the amounts of any advance payment that have then become due for reimbursement to the Employer in accordance with the terms stated in the Contract Particulars for clause 4.6; and

.3 the amount paid in previous Interim Payments.”

Clause 4.9.2 provided as follows:

“… where Alternative B applies, Applications for Interim Payment shall be made on the dates provided for in the Contract Particulars for Alternative B up to the date named in the Employer’s Practical Completion Statement or the date within one month thereafter. Applications for Interim Payment shall thereafter be made at intervals of 2 months (unless otherwise agreed) and upon whichever is the later of the expiry of the Rectification Period or the issue of the Notice of Completion of Making Good (or where there are Sections the last such period or notice).”

The relevant parts of clause 4.10, as amended, provided as follows:

“.1 The final date for payment of an Interim Payment shall be 19 days from the date of receipt by the Employer of the Application for Interim Payment.

.2 ...

.3 Not later than 5 days after the receipt of an Application for Interim Payment the Employer shall give a [payment] notice to the Contractor which shall, in respect of that application, specify the amount of the payment proposed to be made, to what the amount relates and the basis on which the amount has been calculated.”

The date of possession was 26 March 2012, and the following additions were made to clause 4.7. First, Alternative B was to apply. Second, the dates for Applications for Interim Payments up to Practical Completion were stated to be: “The first date is one month after the possession date and thereafter the same date in each month or the nearest Business Day in that month”. Business Days excluded Saturdays, Sundays and bank holidays.

It will be apparent from these conditions that there is a significant difference between the Interim Payment regime prior to Practical Completion and that which takes effect thereafter. It is common ground that the dates on which applications “shall be made” are the dates on which the work which is the subject of the application is to be valued. Since the date for possession was 26 March 2012, all subsequent applications prior to Practical Completion were to be made on the 26^th of each month (or nearest Business Day). There was no provision enabling the parties to substitute alternative dates.

However, after Practical Completion the valuation dates were specified as being at intervals of two months from the date of Practical Completion, unless there had been a further interim application within one month of Practical Completion. The other significant difference is the addition of the words “(unless otherwise agreed)”.

Mr. Hickey submitted that this entitled the parties to vary the interval between applications, but nothing else. Mr. Wygas submitted that it was not so limited and that it enabled the parties to agree the date for any particular application.

This is a very short point. I prefer the submissions of Mr. Wygas. The purpose must have been to achieve a degree of flexibility during the period post Practical Completion, and it is to my mind self evident that this would be better achieved if the parties were able to agree different valuation dates on an application by application basis, rather than just to vary the interval. But even if Mr. Hickey’s submission is correct, it seems to me that the relevant interval could be changed whenever and as often as the parties wished, thereby achieving much the same result.

Mr. Hickey submitted that Jacobs had no authority, either actual or ostensible, to vary the contract and, by extension, during the period post Practical Completion, to vary either the intervals between applications or the application dates themselves. In support of that submission he relied on a decision of the Court of Appeal in Hurst Stores v ML Property Europe Ltd [2004] BLR 249.

In that case the trade contract with Hurst provided that it should submit monthly an “interim final account”. Without any prior discussion, Mace, who acted as contract administrator for MLPE, changed the wording of these interim applications so that they became called “final accounts” and contained the following wording:

“In consideration of the agreement that final payment is to be made by the client, we hereby agree that payment to us of THE FINAL PAYMENT will be accepted by us in full and final settlement of all our claims ... arising out of or in connection with the Trade Contract Works which have accrued up to and including the date of this statement ... .”

Hurst’s project manager, who routinely signed the monthly interim statements, did not appreciate that by the new wording Hurst was being asked to forego claims and it was contended that he acted under a unilateral mistake induced by Mace. It was said also that, in any event, he did not have authority to enter into an agreement by which Hurst would settle or forego claims. The Court of Appeal upheld the finding of the judge that Hurst’s project manager did not have power to vary the terms of the contract: this was contrasted with a project engineer’s power to give directions “within the limits of the contract”: a term used by the Court of Appeal in Sharpe v São Paulo Railway Company (1873) LR 8 Ch App 597.

Mr. Hickey submitted that agreeing different intervals for interim applications after Practical Completion would amount to varying the contract and that there was no evidence before the court to show that Jacobs had such authority.

Mr. Wygas referred me to Article 3, which I have quoted above, and relied in particular on the words “… otherwise act for the Employer under any of the Conditions”. Again, this is a short point. I am quite satisfied that agreeing different application dates or intervals between applications after Practical Completion does not amount to varying the contract. On the contrary, it is implementing a mechanism that the contract permits. By contrast, there is no similar mechanism for altering application dates prior to Practical Completion and therefore to do so would require a variation of the contract. That is something that can be done only by a person specifically authorised by LCC to do so. There was no evidence as to whether or not Jacobs had such actual authority: in my view they did not have ostensible authority to vary the contract.

However, since clause 4.9.2 specifically provided for intervals of two months between interim applications, unless the parties “otherwise agreed”, I consider that if Jacobs were to agree a different interval or different dates for particular applications they would be acting “for the Employer under a Condition”. I therefore consider that Jacobs had both ostensible and actual authority to agree different dates upon which applications for interim payments could be made after Practical Completion.

Mr. Wygas referred me to a passage from the decision of Phillips J (as he then was) in Youell v Bland Welch and Co (the “Superhulls Cover” case) [1990] 2 Lloyd’s Rep 431, at 450, where he said this:

“A party can represent that he will not enforce a specific legal right by words or conduct. He can say so expressly - this of course he can only do if he is aware of the right. Alternatively he can adopt a course of conduct which is inconsistent with the exercise of that right. Such a course of conduct will only constitute a representation that he will not exercise a right if the circumstances are such as to suggest either that he was aware of the right when he embarked on the course of conduct inconsistent with it or that he was content to abandon any rights that he might enjoy which were inconsistent with that course of conduct.”

He referred me also to the well-known passage in the judgment of Denning LJ (as he then was) in Charles Rickards Ltd v Oppenheim [1950] 1KB 623, where he said:

“If the defendant, as he did, led the plaintiffs to believe that he would not insist on the stipulation as to time, and that, if they carried out the work, he would accept it, and they did it, he could not afterwards set up the stipulation as to the time against them. Whether it be called waiver or forbearance on his part, or an agreed variation or substituted performance, does not matter. It is a kind of estoppel. By his conduct he evinced an intention to affect their legal relations. He made, in effect, a promise not to insist on his strict legal rights. That promise was intended to be acted on, and was in fact acted on. He cannot afterwards go back on it.”

In the context of this case, it seems to me that if Jacobs embarked on a course of conduct that led Waco to believe that Applications for Interim Payment would be accepted even if not made on the contractual valuation date, but on some other date - perhaps a few days later, then it would be unconscionable to permit LCC to resile from that understanding.

With that brief introduction, I now turn to the real issue raised by this claim, namely whether Jacobs either agreed to vary the dates for the making of interim applications post Practical Completion or, alternatively, waived LCC’s right to challenge an application made on a different date. An alternative way of putting the point would be that there was some form of reliance by Waco on LCC’s conduct thereby giving rise to some form of estoppel.

Although I heard no evidence on this application, the parties had served witness statements. LCC relied on a witness statement from a Mr. Prentice, a quantity surveyor employed by Jacobs whose role was to oversee all quantity surveying functions carried out from its Leeds office. He says that he administered the contract with Waco from 29 September 2011 and says that he did not agree to change or vary the payment mechanism in the contract. He does not suggest that he was unaware of the valuation dates in the contract and I regard it as fair to infer that, as a professional contract administrator, he was well aware of them. Waco served a witness statement by Mr. Kevin Daniels, its Commercial Manager. It was primarily from his witness statement that I have derived the dates when the applications were made and submitted which are set out in a table below.

Before dealing with the main issue, I should deal with a subsidiary point. I have already mentioned that it was common ground that the dates specified in the contract as the dates on which interim applications were to be made were the dates at which the work the subject of the application was to be valued. This left open the question of whether the application itself could be submitted on a later date.

Mr. Hickey accepted that the provisions in clause 4.10.1 and 4.10.3, which fixed both the final date for payment and the time for giving an Employer’s payment notice by reference to the date of receipt of an application for an interim payment, tended to suggest that the application did not necessarily have to be submitted on the valuation date because it contemplated that the two might occur on different dates. However, I did not understand him to make a concession to this effect. It might be said that the provision was put in to protect the employer in the event that an application was submitted late although made in respect of the correct valuation date.

In my view an Application for Interim Payment under this contract is required to be made on the relevant date: that is to say that it must state the financial position as at that date. It has to include the total value of the work properly executed up to that date (clause 4.14).

There is no express requirement in the contract for an Application for Interim Payment to be served by any particular date and, in the light of the provisions of clauses 4.10.1 and 4.10.3 that I have already mentioned, the employer comes under no obligation to do anything until receipt of the application. However, I consider that the employer needs to have some idea of when an interim application is likely to be received so that he can ensure that he has the resources available in order to respond to it within the limited time that the contract allows - in particular, to consider and prepare any payment notice.

Accordingly, I consider that Waco was under an implied obligation to submit the application within a reasonable time - that being a matter of a few days - after the application had been made: which means the date on which, by the terms of the contract, the application had to be made.

Prior to Practical Completion the dates on which Waco made its applications were almost always a few days later than the date provided for by the contract, with the exception of the applications made on 25 May and 26 October 2012. As the table below shows, the applications were usually submitted on the day on which they had been made, although occasionally this was up to three days later.

Mr. Hickey submitted that this was not the correct way to set out the applications. He submitted that there was an alternative, and correct, way in which these dates should be set out from February 2014 onwards. It is as follows:

Accordingly, depending on which way one looks at it, the applications made on 18 July and 22 September 2014 were either made very late or were premature. I will return to this question a little later.

There is no evidence whatever of any express agreement after Practical Completion to vary either the dates of the valuations or the time for submitting applications. The only occasion on which there was an express agreement concerned the application in December 2012, in respect of which it appears to have been agreed that the application could be submitted early because the valuation date fell within the Christmas break.

The table shows clearly that by the end of 2012, at the latest, the parties had established a course of dealing by which Jacobs would accept a valuation made three to four business days later than the contractual valuation date (the 26^th of each month) and would not insist on applications being made on the application date, provided that they were made very shortly afterwards. This, in my view, is an unavoidable inference from what actually happened.

Accordingly, I find that there was a course of conduct by which Jacobs, on behalf of LCC, agreed to accept monthly applications that were made up to three to four business days after the contractual valuation date. Jacobs was the agent authorised to administer the contract and in my view LCC would not have been permitted to reject, in, say, January 2013, had it been minded to do so, an application made three to four business days after the contractual valuation date. That would be inconsistent with the course of conduct that was by then established.

As can be seen from the table, the only application that was unequivocally made early was that made on 30 April 2013. However, clause 4.9.2 permitted an application to be made on a date within one month of Practical completion. That period expired on 28 April 2013, and so the (first) Application 13 was not made within that period. I do not consider that the agreement in relation to the three to four days leeway in relation to application dates can be extended to this particular provision. It is a “one-off” provision and could not therefore have been the subject of any previous course of conduct.

Nevertheless, LCC paid the application submitted on 30 April 2013 and so it gives rise to no issue. It seems clear also that Waco did not regard the two-month interval as running from 28 April 2013, rather than 28 March 2013 - the date of Practical Completion - because it submitted further applications on 31 July and 30 September 2013. Again, these applications were made two to three business days after the relevant monthly application dates, but I consider that this fell within the course of conduct that by then was already established. Waco made its next application on 26 November 2013, this time two days before the valuation date. This met with an e-mail from a Mr. O’Leary at Jacobs dated 29 November 2013, at 18:18, to Waco in which he said:

“Please note that following PC, applications for payment need to be made at intervals of 2 months. If a valuation is required you would need to submit an application on/after 30/11/2013.

I would also suggest that if any Loss and Expense is being claimed in the next application that the contractual procedures are followed.”

This e-mail made it quite clear that, first, applications would not be accepted if made or submitted prior to the valuation date and, second, that they could be submitted “on/after” the valuation date. Mr. O’Leary appears to have been under the impression that the monthly valuation date was the end of every second month, and not on the 28^th of that month, but I do not regard this as being of any significance. The important point, in my view, is that this e-mail is consistent with the course of conduct that took place prior to Practical Completion. I find that Jacobs were still willing to accept applications even if made three to four business days after the valuation date.

However, what is unusual about the November 2013 application is that the valuation date was two days earlier than the contractual date. Mr. O’Leary seems to have focused only on the date of submission, and did not query the fact that the valuation date taken was two days early. It is not possible to tell from the text of his e-mail whether he had not noticed that the valuation date was two days earlier than it should have been or whether he was simply not concerned about it, provided that the application was not submitted prior to the valuation date. The latter looks more likely, but I am not in a position to make a finding about it. In any event, the re-submitted application for the same amount was subsequently accepted.

It can be seen that although the next application date was 28 January 2014, the next application was not in fact made until 11 February - some two weeks after the contractual valuation date. However, no point was taken by Jacobs and the application was paid five days later. Mr. Hickey pointed out that it was only for some £5,000 and so Jacobs may have taken a pragmatic view and simply decided to recommend payment.

The next two valuation dates, 28 March and 28 May 2014, came and went without the submission of any application. Before the next valuation date, 28 July, Waco submitted the next application which was made on 18 July 2014. Mr. Hickey submitted that this application was early, but I asked him during argument why it was not instead a very late application in relation to the March valuation date. Ultimately, Mr. Hickey’s response was that if a valuation date came and went without an application being made within a few days of it (as the course of conduct permitted), then the next application could not be made until the next valuation date.

There is also a further aspect which I consider to be relevant. If an application were to be made significantly outside the three to four day period of leeway that had been established by the conduct of the parties, Jacobs would be under no obligation to accept it since it would not be a valid or permissible application. If, in that situation, Waco was not permitted to make a further application on the next valuation date, then it would lose the right to make any further application at all.

Mr. Wygas, perhaps unsurprisingly, adopted the suggestion that the applications made on 18 July and 22 September 2014 were applications made late in respect of the March and May valuation dates, respectively. Accordingly, it followed that they could not be challenged on the ground that they were premature.

On reflection, and contrary to my original impression, I consider that the submission advanced by Mr. Hickey is correct and that the right to submit an Application for an Interim Payment revived at each application date. Waco, having failed to submit an application on either 28 March or 28 May, therefore had to wait until 28 September before it could make its next application. It is true that LCC paid the application that was made on 18 July, but, again, the sum involved was not substantial - some £13,000 odd - so it may have been out of pragmatism.

For these reasons I consider that the application made on 18 July 2014 was not a late application in relation to the March or May valuation dates, but was a premature application for July. That application should not have been made until 28 July. LCC waived the irregularity by paying it, but I do not consider that that, by itself, amounted to any form of implied representation that it would waive a similar irregularity in the future: one swallow does not make a summer.

Accordingly, the same reasoning must apply to the application made on 22 September 2014. It cannot be regarded as a late application in relation to the May valuation date. But even if it could have been so regarded, Jacobs had done nothing, apart from certifying the July application for payment, that could have indicated to Waco that after Practical Completion Jacobs was prepared to accept an application irrespective of whether or not was made on any valuation date (or a date within three to four days of it). As I have indicated, in my opinion, that one instance did not give rise to any form of waiver or estoppel.

But Mr. Wygas had a further argument. He submitted that Jacobs accepted Application 21 made on 22 September 2014 by the terms of an e-mail that was sent by a Mr. Stephen Ashworth of Jacobs on 6 October 2014, at 09:44, in which he said:

“Further to your e-mail below, your application was not received on the date issued due to my being on holiday. It has therefore been received today. If you wish to update it before it is processed, please let me know.”

Mr. Wygas submits that, since Mr. Ashworth took no point about the date of the application but merely said that it was deemed to have been received on 6 October, Jacobs must be taken, on behalf of LCC, to have abandoned any rights that they may have had on the ground that Application 21 had not been submitted on 28 September.

I cannot accept this submission. If Application 21 was a valid application, then it was clearly received by Jacobs on 22 September when it was sent by e-mail both to Mr. Ashworth and Mr. Prentice (Mr. Prentice specifically accepted that the e-mail had been received). Thus the five day period for the issue of a payment notice had expired well before 6 October. If Waco’s application had been valid, Mr. Ashworth’s attempt to impose a deemed date of receipt of 6 October 2014 would have been quite ineffective. He could not, simply by so deciding, give LCC further time in which to issue a payment notice. The five day period was one that could only be varied by agreement of the parties. Mr. Wygas submitted that the e-mail “shows an agreement to deal with Application 21”. In my view, for the reasons I have already given, there was no such agreement: rather, it was a unilateral attempt by Jacobs to put back the date of receipt. There was no response from Waco.

The e-mail did not address the validity of the application itself. By the time it was sent, the sum claimed in the application had become the sum due (if it was a valid application) because no payment notice had been served in time by LCC. The submissions of Mr. Wygas on this point, if correct, would have the remarkable result that if the attempt to impose a deemed date of receipt was ineffective (as I consider it was), this e-mail nevertheless validated the application and therefore made LCC liable for the sum due without further argument. In my opinion the clearest wording would be required to achieve such an unusual result and wording of that sort is absent here.

I did not understand Waco to contend that the e-mail constituted a representation upon which it relied to its detriment. Whilst Jacobs offered to consider an updated application, Waco never sought to take up that offer. Accordingly there is no way in which Waco relied on the e-mail.

However, Mr. Wygas submitted that the e-mail amounted to an agreement to vary the application date for Application 21. This was based on the invitation to Waco to update it “before it is processed”. In this context, I consider that “processed” meant no more than that the application would be considered and responded to appropriately. What Jacobs were doing was, at its highest, giving Waco an opportunity to submit a revised application, an offer which Waco never accepted. It may be that Jacobs hoped that Waco would update the application and that the updated application would amount to a fresh application that would supersede Application 21 and so start time for the five day time limit running afresh.

But whatever Jacobs may have had in mind, Waco neither replied to the e-mail nor submitted an updated application. All that is revealed by the evidence is that Jacobs’ e-mail of 6 October was forwarded internally within Waco on 25 November 2014. So things remained as they were.

In support of his submission that Waco never relied on anything said in the e-mail of 6 October, Mr. Hickey submitted that the submission of Application 22 in identical terms shows positively that Waco did not rely on the validity of Application 21. In my view there is considerable force in this submission.

For the reasons that I have given I consider that Application 21 was not a valid application and that, accordingly, the adjudicator’s decision given on 20 February 2015 cannot stand. In the circumstances, LCC is entitled to the declaration that it seeks.

In addition, LCC is entitled to the further declaration that it seeks in relation to Application 22.

Waco must therefore pay back the sums paid by LCC pursuant to the order of 31 March 2015, together with interest. Of course, it remains open to Waco to seek a determination of the value of its final account, following which it may or may not become entitled to further payment.

If there are any consequential matters arising out of this judgment, such as costs and interest, I will hear counsel if they cannot be agreed.