Camillin Denny Architects Ltd v Adelaide Jones
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 11 August 2009 |
| Neutral Citation | [2009] EWHC 2110 (TCC) |
| Date | 11 August 2009 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-09286 |
[2009] EWHC 2110 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Before :
Mr Justice Akenhead
Case No: HT-09286
Lucie Briggs (instructed by Berrymans Lace Mawer LLP) for the Claimant
Sarosh Zaiwalla (instructed by Zaiwalla & Co) for the Defendant
Approved Judgment
Hearing date: 5 August 2009
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Akenhead :
Introduction
Camillin Denny Architects Ltd (“CDA”) were retained in early 2008 to provide architectural services in relation to an extensive refurbishment and extension project at a Grade one listed building at 10 Hertford Street, Mayfair, London (“the Premises”). CDA seeks to enforce the decision of an adjudicator, Chris Calcroft, issued on 26 June 2009, in which it was decided that the Defendant, Adelaide Jones and Company Ltd (“AJ”) should pay them £76,905.27, plus interest and compensation of £556.92 per day with interest continuing at the rate of £23.76 the day after 3 July 2009 until payment, £20,277.63 for CDA's costs and £11,946.37 plus VAT for the adjudicator's fees.
Issues arise as to whether or not there was a novation whereby AJ was replaced by another company, Euro Constructions and Building Ltd (“Euro Constructions”) thus rendering a decision by an adjudicator as between AJ and CDA unenforceable, whether in truth the contract was or became one between CDA and an Indonesian gentleman, Mr Lohia, and as to whether the adjudicator was biased amongst other things in relation to his decision about costs.
The facts
At all material times, the Premises were owned by Dorset Assets Ltd (“Dorset”) a company incorporated in the Bahamas. The official Land Registry entry indicates that this company acquired the Premises on 24 January 2008. I was told that this company was owned or controlled by Mr Lohia, although there is no evidence to this effect.
It is accepted, now, by both parties that CDA was employed by AJ contractually in February 2008. That contract was contained in or evidenced by CDA's letter dated 1 February 2008 to AJ and AJ's letter in response dated 4 February 2008. In the former letter, the Client was expressly identified as AJ; in the latter, AJ expressly say that the “contract for your appointment will be between” AJ and CDA. It was initially argued by Mr Zaiwalla that CDA acted as an agent for an undisclosed principal but he, orally, abandoned that argument; that was a proper concession for him to have made.
The services to be provided by CDA involved the provision of architectural services, including feasibility, design, tender and construction phases. It did not include contract administration or management of the project on site. The fee was to be £425,000 excluding VAT and disbursements but, if the total project cost increased by more than £200,000, that fee would be adjusted by reference to a percentage of 8% of the total project cost. AJ were to be the project managers for the development and, as they indicated in their letter of 4 February 2008, they were retained by Dorset.
There clearly was some discussion in the early stages about the possibility of a novation. For instance, in Mr Camillin's e-mail dated 27 February 2008 he refers to a conversation with a Mr Anand who was associated with Mr Lohia:
“…he informed me that they are moving our appointment to another company-one of Mr Lohia's companies. He will e-mail to Hazel the new contact details…”
At some stage, CDA started to invoice Euro Constructions. This was a company which was apparently not in existence at that time but which it was thought might be the vehicle by which the development was to be pursued. It was a company which apparently was to be registered in Singapore. On 21 July 2008 AJ wrote to CDA as follows:
“I have been forwarded your latest invoice dated 30 June 2008 by Mr Anand on 17 July 2008… made out to Euro Constructions and Buildings Ltd. Whilst I am writing to you formerly regarding the new contract arrangements I would like to clarify that all correspondence in relation to this property must be sent to Adelaide Jones in the first instance including applications for payment…”
This was responded to by Mr Camillin by e-mail on 21 July 2008 to this effect:
“Apologies for not sending the invoice direct to Adelaide Jones, we were confused by your previous letter to us requesting that our future invoices be sent to this new company, in fact I telephoned you and asked for the details of who to send our invoices to and you sent me the e-mail dated 7 July entitled 'Address for invoices' with the address of Euro Constructions attached… We will ensure that future invoices are also copied to Adelaide Jones…”
By letter dated 24 July 2008, AJ wrote to CDA as follows:
“I have now received confirmation from Dorset… that the new structure of the company has been formed. This will necessitate new contracts being entered into between yourself and Euro Constructions and Buildings Ltd of [Singapore]…
You will recall that I forwarded to you amendments to your contract suggested by the solicitor acting on behalf of Dorset… and I would be grateful if you could incorporate as many of the amendments within the new version of your contract (see attached). Furthermore, I would be grateful if you could insert the following clause into your contract either by way of a signed letter or within the main body of the text as follows:
“The liability and warranty for services will continue to be effective from 4 th February 2008”
Please be advised that payments for the remainder of your fees will be paid by Euro Constructions…You should issue your invoices made out to Euro Constructions …
The contract will need to be signed by Director of Euro Constructions… and he is currently in the UK at the moment and therefore if you can issue your contract as soon as possible it will then be possible to finalise the arrangement.
The date of the Agreement should be the same as the original agreement…”
Mr Nimba of AJ followed that up with e-mails on 29 July 2008 asking CDA if the contract had been agreed and how they were getting on “with the revised contract”. Mr Camillin of CDA replied on 30 July 2008 that they would “update” their appointment and forward a copy of it. This exchange suggests that no agreement had been reached at least at this stage.
Mr Camillin then sent to Mr Anand on 30 July 2000 a letter “regarding the additional fees agreed with Mr Lohia for the Contract Administration and coordination aspects of the project.” It seems that Mr Lohia was considering a disengagement from AJ so as to employ CDA to provide the contract administration and project management services. The attached letter was dated 1 February 2008 and was addressed to Euro Constructions in Singapore; the total fee was £130,000 higher than the contract with AJ. This letter purported “to confirm the additional fees agreed with the Client on this project in relation of the Contract Administration elements of the Construction phase and coordination with the Interior Designer for the interior finishes and fittings”; this reflected the wording of the original 1 February 2008 letter. It was said that “this additional fee does not affect our existing terms and conditions as set out in our appointment letter dated 1 February 2008”.
On the following day, Mr Camillin sent to Mr Nimba of AJ the “amended appointment letter as discussed”. However this letter also dated 1 February 2008, and addressed to Euro Constructions in Singapore, was, in substance, identical to the original letter actually sent by CDA to AJ on 1 February 2008. The fee was £425,000 as before and site management and contract administration was excluded.
By this time, CDA were, as the correspondence revealed, becoming very anxious and concerned that invoices already presented were not being honoured.
It seems clear that the proposed contractual re-arrangements had not been effected or finalised by this stage because Mr Anand e-mailed Mr Camillin on 5 September 2008 as follows:
“Euro Constructions contract is expected to be finalised next Friday though I am trying my level best to get it done before that. I would appreciate if you could hold the invoice till that time.”
This e-mail was sent in response to an e-mail from Mr Camillin calling urgently for payment of outstanding fees.
There was then a meeting attended by Mr Lohia and Mr Anand and Mr Camillin on 12 September 2008 in which it is absolutely clear that discussions were still proceeding about fees and fee levels:
“1. Mr Lohia asked CDA to review their fees for the completion of the project. MC responded by saying that it would be worth waiting until the tenders are returned and contractor appointed in order to enable the final construction figure to be reviewed against our appointment and incorporate any additional fee.
3. Mr Lohia commented that the appointment identifies an 18 month period, he questioned whether the fees of the ongoing service would be pro rata the current fee. MC responded by saying that the continuation fee would be based on the current appointment which is based on an 8% of construction value fee.
8. Mr Anand commented that they are still reviewing the contract administration element of the works, and could not confirm the revised appointment for CDA at this stage. The new company set up by Dorset Assets has not been completed and it is affecting the payment of consultant fees…”
It seems that further work was done by CDA and invoices were sent to Euro Constructions. It...
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