News & Article

1. Brief of Case

• • Our Client – the Process Plant Subcontractor – Design and build of part of a process plant was significantly delayed
  • Contract conditions:- NEC April 2013 Edition incorporating Option W2.

2. Construction and operation of a Process Plant to deal with a Councils’ Food Waste, processing into energy and other bi-products. (Fertilizer)

3. What was the issue

• • There were considerable delays by the Main Contractor which critically delayed the Sub-contractor from Completion, and commissioning.
  • AJBC Team drafted and consolidated the claim – for both EOT and justification of Cost claimed.

4. The Parties

• • Main Contractor – Currently in enforcement
  • Process plant Subcontractor – Currently in enforcement

5. Technical Involvement

• • AJBC was appointed as Claims consultant to draft and consolidate the claim
  • Advise on the crystallization of the dispute

6. Our People

• • Mr Andrew Bowler – Strategy / and crystallization/ Adviser / Quantum
  • Mr Alan Clarke – Quantum / Contract
  • Mr Ian Bartlett- Delay
  • Mr Michael Fitzsimons – Engineering
  • Process Expert – Mr Les Gornall – Expert Process. – Requirement for defense of reply

7. Adjudication

• • Adjudication HGCR Act 1996, and
  • The Adjudicator – CIARB nominated Adjudicator
  • The Referral & Reply – AJBC drafted
  • The Reply and challenges – Jurisdictional
    • Requirement to investigate challenges to jurisdiction – Christiani and Nielsen Ltd v The Lowry Centre Development Co. Ltd. [2000]
    • Whether it was a construction Project as defined by the Act Section 108 referred. Fabricom UK Lts v MW High Tech Projects UK Ltd. [2020] EWHC 1626 (TCC) Primary activity was a Waste to power processing plant is not a construction operation.
    • “Any dispute” meaning. Arnold v Britton and others [2015] UKSC 36. Interpretation “What a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using language in the contract means”. J Murphy & Sons Ltd v W Maher and Sons Ltd [2016] EWHC 1148 (TCC) gives a wide definition to “any dispute”.
    • The dispute has not crystallized?  The cases relied on were :-
      • Edmund Nuttall Ltd v R G Carter Ltd [2002];
      • Haiki Shipping Corporation v Sopex Oils Ltd [1997] EWCA Civ 3062;
      • Beck Peppiart Ltd v Northwest Holst Construction Ltd [2003] EWHC 822 (TCC);
      • Cantillon Ltd v Urvasco Ltd [2008] EWHC 282 (TCC);
      • Devon County Council v Celtic Composting Systems Ltd [2014] EWHC 552 (TCC);
    • More than one dispute has been referred to adjudication. The Adjudicator  is foundation for the scope.  William Verry (Glazing Systems) Ltd v Furlong Homes Ltd [2005] EWHC 138 (TCC) 
  • During the course of the adjudication the Responding party raised further challenges
    • Actual costs versus schedule of cost components methodology. As actual cost was considered, by the Responding Party it was therefore considered a valid methodology.
    • The adjudication procedure is unfair. It is a large and complex dispute. Gibson (Banbrdge) Ltd. V Femanagh District Council [2013] NIQB 16 (dispute was 16 lever arch files).
    • Adjudicators Costs. All fees paid by losing party.
    • The referring party response is “ambush” and insufficient time to reply. This was rejected as the Referring Party only responded to new matters raised by the Responding Party in its Response.
    • Use of the expert. The use of an expert in defense of new allegation made by the Respondent was accepted based on the right of natural justice to respond to new accusation made in counter defense.   Adjudication is an adversarial process.

8. The Result

• • AJBC and its team were successful in the adjudication obtain a judgement in favour of its client in the amount of GBP 2.6 million.
  • AJBC is currently involved in enforcement of the result in conjunction with its legal partners.