Ground Developments Ltd v FCC Construccion SA & Ors

This is an application by Ground Developments Ltd, the Claimant (“GDL”) against an entity which refers to itself as the Merseylink Civil Contractors JV, which is a joint venture, to enforce the decision of an adjudicator, namely one made by Mr Edwards FICE, TCIHT, MCICES, FCI Arb, dated 22 April 2016. He was appointed by the Institution of Civil Engineers (“the ICE”) in circumstances which will be explained in the factual section of this judgment. The amount of the decision was £199,008.90 plus VAT in favour of GDL on the substantive dispute. The Adjudicator also ordered his fees to be paid by the Joint Venture in the sum of £8,175 plus VAT. The total of these two sums is £207,403.27 plus VAT, and given that the Joint Venture declined to pay either of these sums, proceedings were issued by GDL in the Technology and Construction Court on 15 June 2016. Accordingly, the application is one for summary judgment under CPR Part 24 in GDL’s favour for the sums ordered to be paid by the Adjudicator.

The three different members of the Joint Venture, who are respectively the First, Second and Third Defendants, are FCC Construccion SA, Samsung C&T ECUK Ltd, and Kier Infrastructure and Overseas Ltd. Curiously, the Joint Venture itself was also made the Fourth Defendant but it is, or appears to be, common ground that the Joint Venture is made up of the first three Defendants acting jointly and severally. I shall refer to the Defendants collectively throughout this judgment as the Joint Venture.

Challenges were made to the Adjudicator’s jurisdiction during the adjudication itself by the Joint Venture. Enforcement is resisted on a number of grounds, not all of them the same as the ones deployed during the adjudication, some of which involve alleged failures by the Adjudicator to comply with natural justice, and some of which seek a trial of issues under CPR Part 7. In order to properly consider those grounds of resistance, which the Joint Venture’s counsel Mr Choat describes in his skeleton as Defences numbered 1 to 7, it is necessary to set out the facts in more than a little detail, not least in relation to contract formation because these form the basis for some of the Joint Venture’s defences. The facts are taken from the total of four witness statements served for the application (two from Mr Morrison, GDL’s solicitor; one from Mr Steensma, the Joint Venture’s solicitor; and one from Mr Mackenzie, the Commercial Director of GDL) as well as from documents in the adjudication and some other documents that were handed up during the summary judgment hearing without objection. I should record that, after the hearing but before the judgment was finalised and before it had been sent to the parties in draft, on 22 July 2016 the Court was sent some tendentious correspondence between the parties about admissions (or whether statements amounted to admissions) and whether this had an effect upon the issues in the case. I have not paid any attention to the contents of those letters, which are controversial, but wish to make it clear that the Court should not be copied in on, nor sought by either party to become involved in, this kind of procedural squabbling after a hearing.

The Joint Venture is unincorporated and involved in constructing the Mersey Gateway Project. The Mersey Gateway Project is for a new six lane toll bridge to be constructed over the River Mersey between Runcorn and Widnes, and about 9.5km of new road, to relieve congestion on existing crossings of that river. GDL is a ground engineering contractor based in Scotland. One of the services offered by GDL is deep soil mixing (“DSM”) which is an in-situ ground improvement technique to improve the engineering properties of formation soils. This can be done to a depth of 25m.

GDL was sent a tender enquiry form by the Joint Venture for a sub-contract package for the DSM column works for the Project. GDL submitted a tender to undertake these works by an email dated 10 June 2015, which followed a meeting between the parties of the previous day. That letter set out certain terms and erroneously referred to “our standard terms and conditions enclosed” and under Section 9 “Standard Terms and Conditions” stated “enclosed”. In fact, none were enclosed. A meeting took place between the parties on 15 June 2015, minutes of which are available. There was then various correspondence about rates and so on, which resulted in an email from the Joint Venture dated 19 June 2015 forwarding to GDL an internal email of 18 June 2015. The earlier email in the email string stated:

“The necessary documentation to formalise the JVB approval is currently under preparation and will be available shortly. In the interim please can you notify GDL that we have selected them as the successful tenderer, and ensure that they proceed with those mobilisation activities to ensure the works commence as required.”

Mr McIntosh for the Joint Venture forwarded that to Mr Mackenzie for GDL with the following comments:

“Please see below the email from Richard Bayliss (CJV Commercial Director). It’s been a long road but we have finally got there!!

[…]

At this point, the CJV would like to thank you for all of the work you have done to date and we look forward to commencing the permanent works in the very near future.”

Thereafter, the parties entered into discussions with the aim of agreeing the terms and conditions of an NEC3 Sub-contract. It was, by the time of the hearing before me, common ground that no contract was formed by the parties on the NEC3 terms. However, this was not always the case and when the Notice of Intention to Refer the Dispute was served on the Joint Venture by GDL, GDL was aware from correspondence that it was at least at that stage potentially contended for by the Joint Venture as a possibility that the NEC3 form governed the parties’ relationship.

Notwithstanding the failure to agree the terms of the NEC3 form, GDL mobilised and purchased specialist equipment which was brought onto site at the Project. On 20 July 2015 the Joint Venture, again by email, instructed GDL in the following terms inter alia: “I can confirm the start date as the 10^th August as previously discussed”. There was therefore an instruction to commence works on site, which GDL did. GDL issued eight weekly reports in respect of the works being performed. On 8 September 2015, by email, GDL sent to the Joint Venture a copy of a letter dated 8 August 2015 in which GDL set out that the parties had not been able to reach “a concluded agreement in order to enter into such a contract [ie the NEC3 Sub-Contract]” and stating that GDL had been instructed to carry out the works, notwithstanding that lack of agreement. The covering email stated “In the meantime we are carrying out works on site in accordance with the attached letter”, which was the letter of 8 August 2015. Confirmation that this was the basis upon which GDL were performing the works was then sent again to the Joint Venture by email on 25 September 2015, and in two other letters, namely those dated 9 October 2015 and 15 October 2015. No response from the Joint Venture challenging that was received.

The parties then found themselves in dispute about various things, not least payment and continuation of the works, the circumstances in which GDL left site, repudiation, and other matters that occur from time to time on such projects. Despite the numerous attempts by Mr Choat, counsel for the Joint Venture, to immerse the court in the fine detail of the substantive dispute (and in particular the stance of GDL on the removal of its offered discount) it is neither necessary nor desirable for the court at an enforcement hearing to take a view on those fine details, other than to the degree necessary to come to a conclusion on enforceability.

GDL was represented by solicitors in the adjudication. The Notice of Intention to Refer a Dispute to Adjudication (“the Notice”) is dated 2 March 2016 and runs to seven pages. There are two important elements of it which play a large part in the current dispute between the parties about enforcement. They are the reference to the Housing Grants Construction and Regeneration Act 1996 (“the 1996 Act”) and in particular the Scheme for Construction Contracts (England and Wales) Regulations 1998 (“the Scheme”) in paragraph 1; and the formulation of the dispute in paragraph 4.1. The Scheme provides the procedural rules which apply where a construction contract is silent on matters that the Act requires to be present in parties’ agreements. The dispute was defined in paragraph 4.1 in the following terms:

“A dispute has arisen between the parties under the Contract. The dispute concerns the Responding Party’s failure to make payment to the Referring Party in relation to three applications for payment made to the Responding Party dated 23 September, 22 October and 30 November 2015 respectively. The Responding Party has not issued any Payment Notices or Pay Less Notice in relation to these applications. In addition, the Responding Party is in material breach of the Contract terms as set out in the letter dated 12 September 2015 in that they have not provided sufficient information in relation to quantum, sequencing and programme of works required by the Referring Party in order to carry out the works”.

(emphasis added)

GDL’s solicitors also made reference in the Notice to the contract formation. Paragraph 3.5 of the Notice stated as follows:

“Despite numerous requests made by the Referring Party, the Responding Party did not provide the information required to allow the Referring Party to agree the terms and conditions of the NEC3 sub-contract.”

Paragraph 3.7 of the Notice stated the following:

“Alternatively should the Adjudicator decide that the NEC3 Sub-Contract forms the basis of the contract between the parties then the Referring Party gives notice in accordance with the TeCSA Adjudication Rules Version 3.2.1 (2015) and shall request that an Adjudicator is appointed by the President of the Institute of Civil Engineers.”

Although the correct title of the professional body is in fact the Institution of Civil Engineers, and not the Institute, I do not consider that there was any doubt that it was to the ICE that paragraph 3.7 referred. Paragraph 4.12 recited the gross value of the works in the sum of £679,681.58 plus VAT and taking into account payments received, paragraph 4.13 stated that “A figure of £198.008.90 plus VAT “remains outstanding in respect of the above mentioned applications”. Paragraph 4.7 had tabulated payment applications, due date and payment notice date (by reference to the Scheme); and the date for a pay less notice and the final date for payment (by reference to “the Contract”).

As will be seen from the Defences relied upon by the Joint Venture, the references by GDL within the Notice to the NEC3 have played no small part in the attack upon the enforceability of the Decision itself. However, the context in which those references appear is important and I deal with that under the relevant defences below.

The ICE was sent an application for an appointment dated 3 March 2016, together with the necessary cheque. The application was upon a printed form provided by the ICE entitled “Application for Dispute Resolution Appointment”. It is a standard form used for different types of appointment including arbitrator, mediator, conciliator and expert, but on this occasion the first of the five available boxes was ticked stating “adjudicator”. Against date of contract, GDL had by its solicitors stated:

“The type and content of the contract and whether the NEC applies is the subject matter of the dispute.”

Against the standard entry stating “please give a brief description of the dispute” it was stated by GDL “the nature of the contract agreed between the parties. See attached Notice of Intention to Refer”. It can therefore be seen that the ICE had the benefit of the whole Notice, including the paragraphs which I have reproduced in paragraph 10 of this judgment. On the final page “The Appointment”, after dealing with experience based upon the subject matter of the dispute, there is a list of seven standard questions under the heading “In the case of adjudication”. These include questions such as “Does the Contract state who should make this selection?” However, GDL, above those questions, had entered the following text:

“…the Adjudication Procedure is an area of dispute between the parties dependant [sic] on the terms of the contract between the parties. See Notice of Intention attached.”

The majority of the questions were answered “n/a” for not applicable.

The ICE nominated Mr Edwards in a letter dated 7 March 2016. The Adjudicator indicated his acceptance of his appointment in a letter also dated 7 March 2016, providing his terms and conditions, confirming no conflict of interest and stating that he would issue directions upon receipt of the Referral. His terms and conditions were contained in a document entitled “Adjudicator’s Agreement”. Clause 1 of that document stated as follows:

“The parties agree:

1.

Mr WJ Edwards to act as adjudicator in the dispute in accordance with the contract procedure or determine the appropriate procedure where one is not identified in the contract.”

The Joint Venture challenged the validity of the Adjudicator’s appointment and thereafter mounted a number of jurisdictional challenges. In a letter from its solicitors dated 18 March 2016 it was stated that the “adjudication proceedings were flawed” and that although some could be remedied by service of a fresh Notice of Adjudication, “others simply reflect the nature of the dispute and the uncertainty as to the applicable contract between the parties”. It was made clear that any decision (although it was called an award) would be resisted on enforcement. It was also said that the present dispute should be “submitted directly to the TCC without the expense of an initial adjudication and a contested enforcement hearing”. GDL were invited to agree to this course. They did not do so.

The adjudication then proceeded. The Adjudicator reached his decision dated 22 April 2016. The Joint Venture remained steadfast in resisting payment, and have also resisted the enforcement proceedings with considerable vigour. I will now turn to the basis upon which enforcement is resisted. Some of these grounds only became clear to GDL upon service of counsel’s skeleton argument, a point raised by leading counsel for GDL at the enforcement hearing. That point, if it becomes relevant at all, would only be relevant on costs because if there is a proper ground, say, for challenging the jurisdiction of the adjudicator, then the decision becomes a nullity. No issues of potential ad hoc submission to the jurisdiction of the Adjudicator arise in this case because the Joint Venture reserved its rights.

Defences numbered 1 to 5 by the Joint Venture go to whether the decision should be enforced at all. Defences numbered 6 and 7 seek to avoid summary judgment and have a trial. Although each of Defences 3 to 7 are crafted with more subtlety than this, one theme that runs through them is that there was, or is, “uncertainty” in the nature of the contractual relations between the parties. In the adjudication itself, the Joint Venture advanced a “no contract” argument, as its primary case, with an argument that in the alternative, that if there were a contract, it was on the terms of the letter of 19 June 2015 which is set out in paragraph 5 of this judgment. However, in the skeleton argument for the enforcement hearing, it was obvious that the Joint Venture had avoided stating what its primary case was on this important point. As a single example only, the first sentence of paragraph 96 of the skeleton stated: “As for the Defendant’s alternative case (whether one states it before or after its “no contract” case)…..” This uncertainty was also contained in the witness statement of Mr Steensma on behalf of the Joint Venture, who addressed this in a section of his statement headed “Uncertainty as to the Sub-Contract”.

I therefore, at the beginning of the hearing, invited Mr Choat to identify which was his primary, and which was his alternative, case on the contract. He was most reluctant to do so. He submitted that the Joint Venture wished to maintain what he called “unity” between these two potential cases. Unity is a word that has harmony, accord, concord and unanimity amongst its synonyms. It is also a word used by mathematicians to refer to the integer 1. It is wholly inapposite to describe a position whereby on the one hand a party submits there was no contract, and on the other submits that there was a contract (regardless of that contract’s terms). It was necessary, therefore, to provide some gentle judicial encouragement to Mr Choat to identify what the Joint Venture’s primary case was on this important point, namely whether there was a contract. Absent a construction contract at all, there would be no application of the adjudication provisions in the 1996 Act (as amended, or even prior to its amendment) at all. It was therefore important to know what the Joint Venture’s case was on this. Following that encouragement, Mr Choat identified that his primary case was that there was a contract between the parties, and that this was on the terms of the 19 June 2015 letter. The “no contract” case was in the alternative to that. It is therefore the situation that each party’s primary case is that there was a construction contract, but the letter(s) that govern that contract are not the same. This is because GDL’s case, as set out in the Notice which stated inter alia “In addition, the Responding Party is in material breach of the Contract terms as set out in the letter dated 12 September 2015”, is that the contract was that of the letter of 12 September 2015. This remained GDL’s case at the enforcement hearing.

With all due respect to the legal arguments on this point by the Joint Venture, its case on the contract (and/or the “no contract” point) prior to the actual enforcement hearing itself could be summarised as being along the following lines – the question of the contract is all very difficult and uncertain; it needs to be resolved. The Joint Venture was very careful not to state what its position on the contract actually was. Following Mr Choat’s clarification, the Joint Venture’s position became the very opposite of the position taken in the adjudication, which was a primary case of “no contract”, with a contract on the terms of the letter of 19 June 2015 in the alternative. There is nothing wrong in advancing alternative cases; in civil litigation it is regularly done and is wholly permissible. There is nothing necessarily wrong in advancing different arguments on enforcement in Court to those deployed in an adjudication, at least in these circumstances. However, these points are relevant to GDL’s objections to Mr Choat’s Defence 7, which I will come to in due course. In my judgment, this careful avoidance by the Joint Venture of nailing its colours to the mast on whether there was a contract, and if so on what terms, prior to the hearing can only have been done for tactical reasons. The Joint Venture also submitted that a Technology and Construction Court trial was necessary to resolve this issue finally. That is undoubtedly true, however the Joint Venture had done nothing at all to initiate such a process. The explanation given to me by the Joint Venture for this failure was that GDL would not consent to such proceedings. I have yet to read the relevant part of the CPR that requires the consent of a putative defendant in such a situation to proceedings being issued against it in order for those proceedings to be valid. I return to this point when dealing with Defence 7.

This is that “the Adjudicator’s valuation of the Claimant’s works lacked jurisdiction or was a material breach of the rules of natural justice”.

The essence of this defence is that the dispute that was referred to the Adjudicator was the lack of Pay Less notices. It is said by the Joint Venture that the Adjudicator decided the dispute by considering the valuation of the works. It is said, therefore, that he accordingly decided a different dispute to the one referred to him, and he had no jurisdiction to do so, and/or breached natural justice because the Joint Venture (indeed, it is said, neither party) had the opportunity to address him on the “valuation of the works”.

There are two recent Court of Appeal authorities on how a dispute is considered that provide guidance concerning the scope and ambit of a dispute referred to adjudication. Neither authority was cited to the court, but both demonstrate the way that an analysis of what the dispute that was in fact referred for adjudication, and decided, should be considered.

In MJ Harding Contractors v Paice and Springall [2015] EWCA Civ 1231 [2016] BLR 85 the Court of Appeal considered the question of a subsequent adjudication in what could be called a “serial adjudication” situation. In a long running series of disputes between the same parties on the same construction project, one of the disputes was the final account. In the third adjudication between them, an adjudicator (but not the one who had adjudicated upon the first, second and then fourth adjudications) found that there was no valid payless notice in respect of the final account claim which had been issued, because the notice that had been issued was too late. He therefore decided that the final account claim (the merits of which he did not consider) should be paid. When the fourth adjudication started in relation to the valuation of the final account, the contractor sought an injunction to restrain it on the grounds that it concerned the same dispute decided in the third adjudication. Edwards-Stuart J refused the injunction. Jackson LJ gave permission to appeal on the basis that the case raised issues of importance. Even though the fourth adjudication had been completed by the time of the appeal, and Coulson J had declined to grant enforcement for reasons of apparent bias in Paice and Springall v MJ Harding Contractors [2015] EWHC 661 (TCC) [2015] BLR 345, the Court of Appeal heard the appeal. In dismissing the appeal (Jackson, Rafferty, Gloster LJJ), the Court of Appeal stated that “the dispute” should not be looked at in isolation. The decision in the third adjudication had dealt with the first of two alternative limbs, namely the contractual issue (validity of the payless notice) and hence had not dealt with the second issue, which was the valuation itself of the final account. Accordingly, Mr Paice and Ms Springall were entitled to refer the valuation dispute for resolution in the fourth adjudication. They also remained entitled to do so again in a proposed fifth adjudication (given the decision in the fourth adjudication had not been enforced for reasons of apparent bias).

Jackson LJ stated in paragraph [57] that in such situations:

“It is quite clear from the authorities that one does not look at the dispute or disputes referred to the first adjudicator in isolation. One must also look at what the first adjudicator actually decided. Ultimately it is what the first adjudicator decided, which determines how much or how little remains available for consideration by the second adjudicator”.

He continued in paragraph [63] that on a proper analysis of the notice of adjudication and the referral document, the contractor referred to the adjudicator “a dispute involving two alternative issues”. He continued in paragraph [64] that:

“…the first issue is a contractual one. The second issue is one of valuation. The adjudicator dealt with the contractual issue. He did not need to deal with the valuation issue. He made that abundantly clear…..”

In Brown v Complete Building Solutions Ltd [2016] EWCA Civ 1 [2016] BLR 98 a differently constituted Court of Appeal again considered repeat adjudications. Mr and Mrs Brown had engaged the contractor to build a new house in Surrey. Following issue of a “Final Certificate” by the Architect, the contractor sought a final payment. It was not paid and the contractor commenced the first adjudication. The adjudicator decided that the certificate was not effective, and the letter seeking payment was not a valid payment notice as it had certain deficiencies. He therefore found no sum payable. The contractor then corrected the deficiencies, issued a valid payment notice, and started a second adjudication. Mr and Mrs Brown did not serve a payless notice, and took the position that this dispute was the same as that in the first adjudication. The second adjudicator did not agree and decided in favour of the contractor. HHJ Raynor QC granted the contractor summary judgment, and Mr and Mrs Brown appealed. The CA (Beatson, Simon LJJ and Sir Robin Jacob) dismissed the appeal, holding that the terms, scope and extent of the dispute previously referred, and the terms, scope and extent of the earlier decision, had to be analysed. Jackson LJ’s dicta in paragraph [57] of Harding v Paice was expressly cited and followed by Simon LJ in paragraph [23]. The dispute that was referred for resolution in an earlier adjudication cannot be considered in isolation.

Here, there are no serial adjudications but the Joint Venture is attempting to mount almost the reverse to the arguments on this point in serial adjudications. The serial adjudication cases have analysis of whether a subsequent adjudication concerned a dispute that had, or had not, been decided. Here, even though a dispute was referred and decided, the Joint Venture argues the Decision was on a different dispute to the one decided, or on a different basis. The Joint Venture maintains that a very narrow dispute was referred, namely the lack of Pay Less Notices, and the Adjudicator decided a wholly different dispute, namely that of valuation. In my view, both of these cases provide guidance in how a dispute that was referred, and then decided, should be considered. The terms, scope and extent of it ought to be looked at, but the starting point is what was the dispute referred? In some circumstances – and a dispute on payment due, resolved on lack of pay less notices is one – a valuation exercise may remain to be decided, but much depends upon what the adjudicator decided and how he or she decided it.

In my judgment, the submission that only a very narrow dispute was referred, namely the lack of Pay Less Notices, is factually incorrect, as is the submission that the Adjudicator decided a wholly different dispute, namely that of valuation. Both these elements of Defence 1 are therefore, in my judgment, wrong. Firstly, upon analysis, it can be seen that the dispute that was referred is clearly set out in the Notice. As set out in paragraph 9 of this judgment:

“The dispute concerns the Responding Party’s failure to make payment to the Referring Party in relation to three applications for payment made to the Responding Party dated 23 September, 22 October and 30 November 2015 respectively.”

That is the dispute that was referred, namely the failure to make any payment in relation to three applications for payment. It is correct that the Notice then continues, as a ground to justify its claim for payment, that no Payment Notices or Pay Less Notices had been issued. That is, or could be, said to be one alternative limb of a contractual kind. However, when one considers the Referral document – as paragraph [63] of the judgment of Jackson LJ in Paice v Harding makes clear is required – it can be seen that the case advanced by GDL is predicated on the lack of Pay Less Notices. This is made crystal clear in paragraphs 33 to 39 of the Referral, in the section headed “The Responding Party’s failure to serve a Payment Notice/Pay-Less Notice” and paragraph 52.2 in the section headed “Redress” which states a decision is sought:

“That the Referring Party is entitled to the sum of £199,008.90 plus VAT of £39,201.78 from the Responding Party in accordance with Payment Applications dated 23 September 2015, 22 October 2015 and 30 November due to the Responding Party’s failure to serve any Pay Less Notices or such other sum that the Adjudicator may decide”.

Mr Choat invited me to consider certain parts of the Decision itself to make good his submission that in fact the Adjudicator decided the dispute upon what could be called “the valuation” point. However, in my judgment, that submission is unsustainable. Section 7 of the Decision does state that although the Joint Venture alleged that application No.3 was overstated, no valuation evidence or material had been submitted by the Joint Venture in the adjudication – which demonstrates, putting it at its most favourable for the Joint Venture, that it had at least the opportunity to do so – and Section 9 on page 17 states in paragraph 9.1 and 9.2 the following:

“[GDL] seek the following Decisions from me:

9.2

That the Referring Party is entitled to the sum of £199,008.90 plus VAT of £39,201.78 from the Responding Party in accordance with Payment Applications dated 23 September 2015, 22 October 2015 and 30 November due to the Responding Party’s failure to serve any Pay Less Notices or any other sum that the adjudicator shall decide.

I decide that [the Joint Venture] shall pay GDL the sum of £196,008.90 plus VAT as appropriate.”

(emphasis added)

It is clear to me, when one considers the whole of the Notice, the Referral and the Decision itself, that the dispute that was referred was the failure to make payment to the Referring Party in relation to three applications for payment made to the Responding Party dated 23 September, 22 October and 30 November 2015. One of its limbs was the lack of Pay Less Notices. That was the basis upon which the Adjudicator decided the dispute. He did not decide that dispute on the valuation basis.

The Joint Venture relied upon a number of authorities as supporting Defence 1. It was said, for example, that the Adjudicator had not answered the question put to him, and that Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000] BLR 522 which is a Court of Appeal authority in which Nikko Hotels (UK) Ltd v MEPC PLC [1991] 2 EGLR 103 at 108 was cited, supported the Joint Venture in this. I of course accept that where an adjudicator has answered a question different to the one put to him (or her), which may just be a different way of stating that the adjudicator has not confined him or herself to the dispute referred, then the decision is not enforceable because it is made without jurisdiction. That is plainly not the case here. In my judgment, the Joint Venture are straining to interpret both the Notice, and the Decision, in an artificial and constrained way far beyond what the natural meaning of the words themselves used can bear, concentrating on isolated sentences out of context, in order to demonstrate that there was some imaginary straying by the Adjudicator outside the ambit of the dispute that was referred to him.

In another case relied upon by the Joint Venture, Stellite Construction Ltd v Vascroft Contractors Ltd [2016] EWHC 792 (TCC), 165 ConLR 108, Carr J considered a situation where a sum of £1,064,158.38 was sought. This was a sum claimed sought for liquidated damages but the Notice included the words “or such other amount that the Adjudicator deems appropriate”. At paragraph [85] Carr J held:

“Even allowing for some latitude, the words "or such other amount that the Adjudicator deems appropriate" cannot be stretched to encompass a claim for un-liquidated damages (or, logically, any other amount brought in any claim for money under the Contract)…”

That situation is wholly different, both as a matter of fact and on the words themselves, to the situation here. That case is wholly distinguishable and nothing I have said in this respect in this judgment should be taken as disagreeing with the Judge’s analysis in that case. Here, the Adjudicator decided the dispute referred to him on the main basis upon which GDL relied, namely the lack of Pay Less Notices. He was fully entitled to do that; even if he were wrong in fact or law in the way he reached that decision, it should still be enforced.

It follows that Defence 1 fails. So far as breaches of natural justice are concerned, it has been made clear many times, not least by the Court of Appeal in Carillion Construction Ltd v Devonport Royal Dockyard Ltd [2005] EWCA Civ 1358 [2006] BLR 15 and in numerous cases in the decade or so since that decision upheld Jackson J (as he then was) in the first instance judgment at [2005] EWHC 778 (TCC) [2005] BLR 310 that it is only in the “plainest cases” (the phrase in paragraph [87] of the judgment of Chadwick LJ) that the court will fail to grant enforcement when such breaches are alleged. Another relevant phrase is:

“…unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair”. (paragraph [85])

The approach which I apply to each of Defences 2, 4 and 5 is as set out by the Court of Appeal in that case. Each of these defences alleges lack of jurisdiction and/or breaches of natural justice. It is not necessary to consider this point further in respect of Defence 1 because of my analysis in paragraph 28 above. However, the approach that I adopt is as follows, from the judgment of Chadwick LJ:

“85.

The objective which underlies the Act and the statutory scheme requires the courts to respect and enforce the adjudicator's decision unless it is plain that the question which he has decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present case; which (contrary to DML's outline submissions, to which we have referred in paragraph 66 of this judgment) may, indeed, aptly be described as "simply scrabbling around to find some argument, however tenuous, to resist payment".

86.

It is only too easy in a complex case for a party who is dissatisfied with the decision of an adjudicator to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels "excess of jurisdiction" or "breach of natural justice". It must be kept in mind that the majority of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not more likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution which meets the needs of the case. Parliament may be taken to have recognised that, in the absence of an interim solution, the contractor (or sub-contractor) or his sub-contractors will be driven into insolvency through a wrongful withholding of payments properly due. The statutory scheme provides a means of meeting the legitimate cash-flow requirements of contractors and their subcontractors. The need to have the "right" answer has been subordinated to the need to have an answer quickly. The scheme was not enacted in order to provide definitive answers to complex questions. Indeed, it may be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the statutory scheme; or whether such disputes are suitable for adjudication under the scheme. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present.

87.

In short, in the overwhelming majority of cases, the proper course for the party who is unsuccessful in an adjudication under the scheme must be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator's decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense – as, we suspect, the costs incurred in the present case will demonstrate only too clearly.”

This defence is that the Adjudicator is said to have adjudicated at the same time on more than one dispute without the Defendants’ consent – the valuation of the Claimant’s works being a separate dispute.

The Joint Venture relies upon Deluxe Art & Theme Ltd v Beck Interiors Ltd [2016] EWHC 238 (TCC) [2016] BLR 274, a case in which Coulson J held that (1) a dispute about an extension of time (up to practical completion) and loss and damage was separate from (2) a dispute about the retention payable upon practical completion. That case is entirely distinguishable on its facts. There were two adjudications, two disputes of entirely different character – as a single example, the nature of the proprietary interest in retention funds is somewhat different to a claim for an extension of time – and the argument was that these were part of the same dispute, even though they were advanced in different adjudications. The Judge disagreed that they were, and it is easy to understand why. He stated in paragraph [18] as follows:

“Finally, it should be noted that there is no authority to support the proposition that two different disputes, deliberately raised by the claiming party in two separate adjudication notices, and described in very different terms, could still somehow be part of the same dispute. All of the authorities about the reference of more than one dispute, which culminate in Witney Town, were cases where there was one notice of adjudication, and the outcome depended on the nature of the issues that had been referred to the adjudicator under that single notice. Thus, whilst I accept that the mere fact that there were two notices may not necessarily be determinative, it might be thought that it would take a very unusual set of circumstances to conclude that the disputes referred to in the adjudication notices, started at different times, both formed part of the same dispute.”

Given my analysis of the dispute that was referred in this case, what it comprised, and the way that the adjudicator did in fact decide it, it can be seen that this defence too must fail. Only one dispute was referred to the Adjudicator as I have found. I find it surprising that it could even be argued, in the light of the dispute that was in fact referred to the Adjudicator in the Notice and the terms of the Decision itself, that he was adjudicating upon more than one dispute. To be fair to Mr Choat, although this defence was numbered 2 in a list of 1 to 7, he did not concentrate upon it to any great degree and in my judgment this was the correct course. It is verging upon, if not completely, unarguable.

This ground of defence is that GDL “obtained the Adjudicator’s appointment pursuant to (NEC) provisions that were not agreed between the parties.”

This defence is said to arise out of what was described as “schizophrenia” on the part of GDL, who drafted the Notice on the basis that the contract was based upon the September letter, yet (it was said) sought an appointment pursuant to the NEC3 contract provisions for adjudication which incorporated the TeCSA Rules. These procedural rules for the adjudication are different to the ones contained in the Scheme, which would apply given the September letter (which sent the letter of 8 August 2015) was silent upon adjudication provisions, which are well known as being mandatory by operation of the statute.

The summary of this defence is set out in paragraph 67 of Mr Choat’s skeleton. This summary states that (1) GDL applied to the ICE under the NEC terms; (2) that GDL “equivocated in the Adjudicator’s appointment”; and (3) that the Notice and application to the ICE recognised “that at least one of the bases on which it was applying was invalid”.

Each of these grounds is predicated on references in the Notice itself to the NEC3 form, and the references to NEC on page 13 of the standard application form to the ICE which was filled in by GDL’s solicitors. That form is dealt with in paragraph 12 above.

Given that the form in question was sent with the Notice itself, and expressly referred to the Notice in more than one place and hence incorporated its contents by reference, it cannot be said in my judgment that GDL obtained the appointment by the ICE pursuant to NEC provisions. This would be a misrepresentation of the whole of the application for an appointment to the ICE. It might be that this is why in the skeleton argument “NEC” appears in brackets as set out in paragraph 36 of this judgment. GDL made it clear to the ICE that there was a potential difference between the parties about the contract terms. It also made it clear in paragraph 1.1 of the Notice that the application was being made under the Scheme. Paragraph 3.4 of the Notice expressly defined the letter of 12 September 2015, after an explanation that it set out the works and contained details of the programme, payment terms and liability as “The Contract”. It was expressly stated, in the alternative, that the Adjudicator could potentially decide that the NEC 3 Sub-Contract formed the basis of the contract. This was because, as explained to me at the hearing by Mr Hussain QC, Leading Counsel for GDL, at that time one of the ways that the case was advanced by the Joint Venture was that the NEC3 form applied. It is also clear from the Referral generally (but in particular paragraph 11 which states in terms that the NEC3 form was not agreed) that GDL at no point maintained that the NEC terms were agreed; however, I do not take the Referral into account on this point as this post-dated the appointment of the Adjudicator.

I do not consider that any of those references to the NEC, or the NEC3 form, mean that GDL obtained the appointment from the ICE pursuant to NEC provisions that were not agreed, or “pursuant to (NEC) provisions that were not agreed” (which is the way the Joint Venture explain this point in the written skeleton). The Adjudicator was not nominated by the ICE under the NEC terms, and he did not accept his appointment by making any reference to the NEC terms either. Indeed, paragraph 1 of his acceptance stated that he was first to determine the appropriate procedure. He would not have had to do this had the NEC terms applied, as these incorporate the TeCSA Rules. I accept that it is unfortunate that the box stating “NEC” is ticked on page 13, but in all the circumstances what could be described as a minor clerical error in filling in that form does not affect the whole application for an appointment, which in at least five different places (both in the form and in the Notice) expressly stated the correct position so far as GDL is concerned regarding the contract, which was that the NEC terms did not apply.

The “alternative” in paragraph 3.7 of the Notice, namely that “the Adjudicator could decide that the NEC 3 Sub-Contract forms the basis of the contract” did not arise. It was also made perfectly plain that this was being explained in the alternative. It was not being contended for by GDL. Accordingly, the device adopted by GDL in that paragraph, namely seeking in the alternative to give notice of adjudication, did not and does not arise. In my judgment, the inclusion in the Notice of that paragraph setting out one part of the Responding Party’s case does not invalidate the Notice itself. What the situation might have been had the Adjudicator decided that GDL’s primary case on the contract (under which he was appointed) was flawed, and what he may have then done, is academic because this is not what happened. In his Decision at paragraph 5.19, he found expressly the following in respect of the September letter from GDL enclosing the letter of 8 August 2015:

“The [Joint Venture] did not respond to this letter and allowed the works to continue, thus I decide that the conditions included in the letter were accepted by [the Joint Venture] by allowing the works to progress.”

He therefore accepted GDL’s case in this respect. The fact that he refers to a letter of 9 September 2015, and not an email of 8 September 2015 which first enclosed the letter of 8 August 2015, does not matter.

It is therefore the case that GDL did not apply to the ICE for an appointment under the NEC terms; the Adjudicator was not appointed under the NEC terms; it was not GDL’s case before the Adjudicator that the NEC3 terms applied; it was expressly part of GDL’s case before him that the NEC terms were not agreed; and the Adjudicator did not find that the NEC terms applied. Indeed, he expressly accepted GDL’s case that the contract was formed on the basis of the 8 August 2015 letter sent by email in early September 2015.

The first-instance case of Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWHC 10 (TCC), [2014] BLR 150 upon which the Joint Venture relies is on wholly different facts and is distinguishable. In that case, the referring party Volker applied for an appointment under the DOM/2 form and the court, when considering injunctive relief within the context of existing litigation proceedings, held that there was no such agreement, and the agreement between the parties was contained in a letter of intent and not on the DOM/2 form. In paragraphs [57] [87] and [88] Edwards-Stuart J made it clear that given the nomination was sought pursuant to a provision that was not a term of the contract, the appointment of the adjudicator was invalid and any decision would be a nullity. He therefore granted an injunction restraining the adjudication. That decision followed the reasoning of Pegram Shopfitters Ltd v Tally Weijl [2004] 1 WLR 2082 in which the Court of Appeal explained that unless an adjudicator was appointed under the correct contractual provisions his (or her) appointment would be a nullity. I accept, and am bound by, Pegram, and Twintec is persuasive, but the facts are very different here. Here, the appointment was sought under the Scheme because the contract did not have any adjudication provisions. That was the basis upon which the ICE were asked to make the nomination, the basis the nomination was made and the basis of the appointment. I return to this point in Defences 6 and 7 but in my judgment the factual situation in Twintec is very different to the factual situation here.

This defence too therefore fails.

This is, to use the heading to this Defence in the skeleton argument of the Joint Venture, that:

“…on the Claimant’s case the parties concluded a contract providing for adjudication under TeCSA’s rules, but the Adjudicator’s Decision decided that the Scheme’s rules had been applicable during the adjudication”.

This ground is then clarified in the Joint Venture’s skeleton in the following terms in paragraphs 68 and 69. The references have been expanded by me for convenience:

“68.

In the Claimant’s Adjudication Notice it expressly envisaged the application of two different sets of adjudications rules, namely the Scheme’s Part I and the TeCSA Rules. [Paragraphs 3.6-3.7 of the Notice]

69.

The adjudication was conducted without any clarity as to which – if either – set of these wholly different rules should be applied. It was only in the Adjudicator’s Decision that the Adjudicator stated the rules which he considered had been applied all along, namely the Scheme’s Part I rules [Paragraph 5.13 of the Adjudicator’s Decision].”

Both the heading to Defence 4, and each of the paragraphs that I have reproduced, are in my judgment factually wrong. It was not the case of GDL, the Claimant, that the parties concluded a contract providing for adjudication under the TeCSA Rules. Rather to the contrary, the Notice makes clear that GDL’s case was that the contract was on the September email sending the 8 August 2015 letter, and that the Scheme (and not the TeCSA Rules) applied to the adjudication. Paragraph 1.1 of the Notice makes clear that the Scheme applies. Paragraphs 3.3 to 3.6 of the Notice makes clear GDL’s case on the contract, and paragraph 3.6 reiterates and makes it further clear that the Scheme applies. The suggestion that GDL “expressly envisaged the application of two different sets of adjudications rules” is misconceived; TeCSA is only referred to relating to the potential of an alternative finding, which was expressly not the case advanced by GDL on the contract, concerning the application of the NEC3 terms.

Further, the adjudication was not conducted without clarity about which rules applied as the Joint Venture alleges. The Adjudicator did not wait until his Decision to resolve this, as suggested if not specifically submitted by the Joint Venture. On 9 March 2015 the Adjudicator identified to the parties the proposed procedure, and gave a direction for deadlines for certain steps that would not have been necessary had the TeCSA Rules applied (because those Rules have deadlines specified). He invited comments from both parties on his proposed procedure. The solicitors acting for the Joint Venture answered, raising jurisdictional challenges and a reservation of rights was made by an email to the Adjudicator dated 10 March 2016 and by a letter to GDL’s solicitors dated 7 March 2016, which was also sent to the Adjudicator. No complaint was made that the proposed procedure was not compliant with the Scheme or should not have been made under the Scheme, or that the TeCSA Rules should have been applied. It is obvious to me (and must have been obvious to the parties at the time) that the Scheme was being applied by the Adjudicator. This is expressly made clear in a letter dated 18 March 2016 from the Joint Venture’s solicitors to the Adjudicator in which express complaint is made that GDL “has failed to comply with paragraph 7(2) of the Scheme….” That phrase appears twice, once in a heading on page 4 of the letter and in the text itself. There was no doubt, in my judgment, that the Scheme was applied by the Adjudicator and the parties knew this at the time. If the Scheme was not being applied by the Adjudicator, there would have been no reason for the Joint Venture to have complained that GDL was not acting in compliance with the rules of the Scheme.

The authority relied upon by the Joint Venture in this respect, namely Ecovision Systems Ltd v Vinci Construction UK Ltd [2015] EWHC 587 (TCC) is of no assistance. In that case the sub-contract contained two different sets of rules, one in Option W2 of the NEC3 sub-contract, one in Option W2 of the NEC3 Main Contract, or the Scheme if neither of these applied. That is patently different to the case here.

This ground of defence therefore also fails.

This is that:

“The Adjudicator’s decision that there was a June 2015 contract that was amended or supplemented by the Claimant’s letter of 8 September 2015 lacked jurisdiction or was a material breach of the rules of natural justice.”

This attack is upon the substantive findings of the Adjudicator himself as set out in his decision. It is trite law, or should be, that the decision of an adjudicator is enforceable regardless of any mistakes of fact or law; Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd [2000] EWCA Civ 507 [2000] BLR 522 made this clear in relation to a very clear mistake, namely one concerning arithmetic and retention.

That decision, and the approach of the courts for at least the last 16 years if not longer, should not be capable of being circumvented by attempting to portray dissatisfaction with an adjudicator’s findings of mixed fact and law to the effect (as here) that a letter in September 2015 had contractual effect, as one lacking jurisdiction or breaching the rules of natural justice. This is, in this case, being used to disguise what is in reality a challenge to the findings that the Adjudicator made. It cannot be said to be a finding that he did not have jurisdiction to make, or one that he made unfairly.

In any event, this is unarguable in the circumstances of the drafting of the Notice itself, and the Referral itself (which in paragraph 14 referred to the September communication sending the 8 August 2015 letter as “setting out the works being carried out and the contractual basis on which the works were being progressed by the Referring Party”). Indeed, in the Response by the Joint Venture, express submissions were made by the Joint Venture on that very case by GDL, those submissions being in a section entitled “The existence and terms of a sub-contract” and in paragraphs 4.1 to 4.4 of the Response. A table was included which had eight “candidates” for what the contract was. The letter from GDL of 8 September 2015 is expressly referred to by the Joint Venture twice in paragraph 4.3 and candidate 5 in the table in the very submissions sent to the Adjudicator.

The views of Chadwick LJ could have been tailor written, in my judgment, for the approach of the Joint Venture to this Decision, so far as the challenges to jurisdiction and alleged breaches of natural justice are concerned. This defence too fails.

These can usefully be taken together. They both consist of arguments raised by the Joint Venture to the effect, not that the Decision should not be enforced at all (what Mr Choat referred to as a “knockout blow”) but to a failure of the application by GDL for summary judgment, and the need for a contested trial on the issue of the contract. In terms each defence is phrased as follows:

Mr Choat frankly submitted that if, say, the court were minded to agree with Defence 7 and conduct a trial on the contract point, and decide in favour of the case advanced by GDL, the decision would then be enforceable. In other words, a temporarily binding decision would not be held to be temporarily binding between the enforcement hearing and that trial, but could then become temporarily binding again after that dependent upon the outcome (although the point about the contract would have been finally resolved). This is not only clumsy, but in my judgment is wholly contrary both to the ethos and policy of adjudication generally, and the decided authority on the status of adjudicator’s decisions and how they should be enforced.

In the seminal case of Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] EWHC 254 (TCC) [1999] BLR 93 Dyson J (as he then was) stated that the usual remedy for a party who had an adjudicator’s decision in their favour would be to issue proceedings and seek summary judgment. Since then, adjudication business is dealt with by way of an expedited procedure set out in Section 9 of the Technology and Construction Court Guide (currently in its third revision of the 2^nd edition) designed to enable claimants to obtain, for decisions made by a validly appointed adjudicator acting within their jurisdiction and without materially breaching the rules of natural justice, speedy judgment.

It is not necessary, and in my view would be contrary to that approach, to have to conclude on the material currently before this court that each, all, or any of the arguments that the Joint Venture has marshalled to resist this summary judgment application had no real prospect of success in order to give summary judgment to GDL on this Decision. The approach of the court should be the conventional one on an enforcement, namely was the adjudicator validly appointed, did he act within his jurisdiction and in accordance with the rules of natural justice?

Even if I am wrong about that, it should be further noted that on this application the material before the court would lead me, in any event, to conclude as invited to by Mr Hussain QC in his response to these two defences, namely that the alternative candidates proposed by the Joint Venture for the arrangements agreed by the parties (having been whittled down from the eight before the Adjudicator, now to only two) did indeed have no real prospect of success. The analysis by GDL in the adjudication on the contract was entirely conventional; the Joint Venture chose to put only limited evidence before the Adjudicator, explaining in paragraph 1.5 of its Response that it was still in the process of preparing it, but that should not be taken as agreeing to any of the evidence submitted by GDL. It was entitled to adopt that course then, but should not in my judgment now be permitted to avoid enforcement by stating that it wishes to put other evidence before the court now on contract formation, after it has lost the adjudication.

In Pegram Shopfitters Ltd v Tally Weijl (UK) Ltd [2003] EWCA Civ 1750 [2004] BLR 65 May LJ stated at paragraph [33]:

“I entirely accept that the court should be vigilant to examine arguments of this kind critically. If they are insubstantial and advanced for tactical reasons, the court will not be deterred from giving summary judgment where this is appropriate.”

I consider that the arguments over the contract mounted by the Joint Venture are indeed insubstantial and advanced for tactical reasons. Factors supporting this are the approach by the Joint Venture to the adjudication itself, its position over adducing comprehensive evidence in that forum, its stated wish to do so now and have a trial (but claiming consent by GDL were necessary for this to happen) and also the way some extraordinarily weak arguments resisting enforcement have been advanced. In my judgment, the critical analysis that I have to bring to this question does not assist the Joint Venture.

However, Pegram is in any event distinguishable. In that case, HHJ Thornton QC at first instance had concluded that it was not open to the Tally Weijl to advance a “no contract” argument, when it was. Paragraph [29] of the judgment makes it clear that the judge had recorded the defendants’ contentions in the wrong order and was also wrong to have considered that the parties were agreed that there was a contract but not able clearly to identify its terms. That is not the case here. The authority is recited in the foremost published work on adjudication, Coulson on Construction Adjudication (3^rd edition, Oxford University Press) as meaning that where there is a “real dispute” about the appropriate contract terms it was at least then arguable that the adjudicator would not have the necessary jurisdiction. I do not consider that there is such a real dispute on these facts between these parties.

Here, GDL were clear and provided written confirmation to the Joint Venture on a number of occasions concerning the terms upon which the works were being performed by it. No responses were received to those communications, even though works were not only permitted to continue, but in fact encouraged if not specifically instructed. No Pay Less Notices were issued by the Joint Venture. The Joint Venture has, on the other hand, remained steadfastly silent when it suited it to do so (during the works themselves) and also extraordinarily hesitant, if not outright reluctant, to commit itself to any positive statement of what contractual arrangements were agreed. I consider this highly relevant in the context of these proceedings. I also consider that the statements made that consent of GDL was needed in order to have the court resolve such issues with finality are part of this tactical approach. The Joint Venture seeks to advance the “uncertainty” point constantly but without being prepared to do anything, even as basic as a positive averment, of what it says the contractual arrangements are. This has improved somewhat since the adjudication when there were eight candidates, but even in the evidence for the enforcement hearing this approach was maintained.

In those circumstances, and carefully considering the material put before the court on this summary judgment application, I conclude (without finally determining the point) that the alternative contentions advanced by the Joint Venture would have no real prospect of success. I therefore conclude that Defences 6 and 7 fail too. However, given that limited material, I should make it clear that this does not mean the contractual question has been fully and finally decided by the court in the same manner as though there had been a trial.

Finally, excluding VAT, the parties collectively have spent a total sum by way of costs in these proceedings in excess of £55,000, arguing about the enforceability of a sum of about £207,000 that is potentially repayable in any event, because of the temporarily binding nature of adjudication. That is over one quarter of the sum the subject of the Decision. It cannot pass without comment that this is contrary to the purpose of Parliament when it imposed this alternative, and temporary, process of dispute resolution upon parties who enter into construction contracts.

It follows, therefore, from my findings on each of Defences 1 to 7 that GDL are entitled to summary judgment on this application to enforce the Adjudicator’s Decision in the sum of £207,403.27 plus VAT. I will hear counsel further on the question of interest and costs.