Eurocom Ltd v Siemens Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ramsey |
| Judgment Date | 07 November 2014 |
| Neutral Citation | [2014] EWHC 3710 (TCC) |
| Docket Number | Case No: HT 14 250 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 07 November 2014 |
[2014] EWHC 3710 (TCC)
The Hon Mr Justice Ramsey
Case No: HT 14 250
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Serena Cheng (instructed by Wheelers LLP) for the Claimant
Ms Fionnuala McCredie QC and Mr Paul Bury (instructed by Mr Suber Akther, Siemens PLC Legal Department) for the Defendant
Introduction
In these proceedings the Claimant ("Eurocom") seeks to enforce an adjudicator's decision against the Defendant ("Siemens"). Siemens resists the application for summary judgment on a number of grounds: that the adjudicator's appointment was invalid; that the adjudicator decided a dispute different to the one in the notice of adjudication and/or a dispute that had already been determined in a previous adjudication and that the adjudication procedure was unfair in breach of the requirements of natural justice. Siemens contends that, to the extent that the court decides that there should be summary judgment, there should be a stay of enforcement of any judgment in favour of Eurocom.
Background
Siemens engaged Eurocom under a sub-contract dated 20 April 2011 to install communications systems at Charing Cross and Embankment underground stations ("the Sub-Contract"). Those systems were designed and supplied by Siemens under a Main Contract with London Underground Limited. Disputes arose between Eurocom and Siemens concerning delay to the commencement of the work, variations, prolongation, delay and disruption. On 20 July 2012 Eurocom served a notice of adjudication on Siemens.
On 1 August 2012, Siemens sought to terminate Eurocom's employment under the Sub-Contract for default and, thereafter, alternatively at will. The notice of adjudication served on 20 July 2012 lapsed and Eurocom gave a second notice of adjudication on 8 August 2012. This led to the appointment of Mr Matthew Molloy as adjudicator in respect of this adjudication ("the First Adjudication"). He made a decision on 27 September 2012 in which he determined that, in fact, there was a net amount of £35,283.98 due from Eurocom to Siemens but that this led to no payment at that stage.
Over a year later, Eurocom issued a claim document dated 21 October 2013 ("the October Claim") which was accompanied by 16 files of supporting documents. That document was served by Eurocom's representative, Knowles Limited ("Knowles"). In the covering letter Knowles notified Siemens that they required the claim to be satisfied by Siemens within 28 days, failing which Eurocom would instigate proceedings.
On 18 November 2013 Siemens responded to that claim requesting documents and stating that they would then agree timescales to assess the claim fully. They said that " for the avoidance of doubt, your client's claim is currently rejected."
On 21 November 2013 Knowles served notice of adjudication on Siemens in relation to the October Claim and gave notice that they would be applying to the RICS for appointment of an adjudicator forthwith. Mr Peter Giles of Knowles submitted on the same day a " Request for nomination of an adjudicator by RICS on a construction contract" on the RICS standard document " Adjudication Explanatory Note (EN2C) and Application Form (DRS2C) December 2010". On the application form there is a box underneath the following question: " Are there any Adjudicators who would have a conflict of interest in this case?"
Mr Giles completed the box as follows:
"We would advise that the following should not be appointed:
Mr Leslie Dight and Mr. Nigel Dight of Dight and partners; Mr. Siamak Soudagar of Soudagar associates; Rob Tate regarding his fees — giving rise to apparent bias; Peter Barns for dispute of a minimum fees charge and apparent bias; Additionally Keith Rawson, Mark Pontin, J R Smalley, Jamie Williams, Colin Little, Christopher Ennis and Richard Silver, Mathew Molloy who has acted previously or anyone connected with Fenwick Elliott solicitors who have advised the Referring Party."
In the RICS explanatory note it stated at paragraph 3.3 in relation to conflict of interest:
"If it is known that specific adjudicators would be unable to act because of a conflict of interest, please give details here. Please note: the form will automatically be copied to the responding party. Where time permits, we will allow 24 hours for a response to be made before making a nomination. RICS reserves the right to copy any correspondence to the adjudicator and to the other party."
In response, also on 21 November 2013, RICS emailed Knowles acknowledging the application for the nomination of an adjudicator and emailed Siemens confirming that the RICS would nominate an adjudicator in respect of Knowles' application. The RICS did not send Siemens a copy of the application form completed by Knowles.
On 22 November 2013 the RICS nominated Mr Anthony Bingham as the adjudicator in this adjudication ("the Second Adjudication"). The referral was served by email and web link on 22 November 2013 and hard copies of the referral with 16 files of attached documents were served on 26 November 2013. This started the 28 day period in which the adjudicator had to reach his decision. The adjudicator directed that Siemens should put in its response by 5 December 2013. Siemens served its response by email on 5 December 2013 and sent supporting documents in hard copy on the morning of 6 December 2013.
On 9 December 2013 Knowles requested leave to serve a reply by 13 December 2013 and agreed to give the adjudicator an additional day in which to make his decision, extending the date to 4 January 2014.
Knowles emailed its reply on 13 December 2013 by posting it on a weblink. That weblink, as in the case of the referral, seems to have prompted a security message on Siemens' computers warning against downloading from the link. In the event Siemens were able to access the weblink. Hard copies of the reply were served on 17 December 2013.
On 16 December 2013 Siemens sought leave to serve a short rejoinder. The adjudicator responded the same day and gave Siemens leave to serve a rejoinder on 18 December 2013, with Eurocom having the last word on 21 December 2013. The time for the decision was then extended to 14 January 2014.
Siemens served its rejoinder on 18 December 2013. On 20 December 2013 Knowles requested an extension to 23 December 2013 for service of its "last word" submission, and agreed to put back the decision date to 16 January 2014. The adjudicator responded, agreeing. Siemens responded saying that the 28 days could only be extended by the referring party unilaterally to 42 days and that any extension beyond the 42 days required the agreement of the responding party. Given the date of Eurocom's referral being 26 November 2013, Siemens said that Eurocom could only unilaterally extend the date of decision to 10 January 2014 but that Siemens consented to extending the period for the decision to 14 January 2014. Siemens requested that Eurocom's final submissions should be served as originally directed on 21 December 2013.
On 23 December 2013 Eurocom emailed the weblink from which Siemens could download Eurocom's final submissions, which was given the title "surrejoinder". Hardcopies of the surrejoinder were served on the morning of 24 December 2013, accompanied by six lever arch files of documents. In the covering letter Knowles said that, to the extent that the surrejounder referred to and exhibited additional material that had not been addressed by Siemens, Eurocom was prepared to agree a reasonable time in which Siemens could make comments.
Siemens objected to the documents by letter dated 24 December 2013 in which it said that Siemens was closed for business from that afternoon until 6 January 2014 and that Siemens' team was not available until that date. Siemens indicated that it would require at least until 20 January 2014 to respond. Correspondence was exchanged on 27 and 31 December 2013. This culminated in an email from the adjudicator on 31 December 2013, confirming that the decision date remained at 14 January 2014 provided that Siemens served its submissions by 5:00pm on Friday 3 January 2014. Siemens emailed its submissions on 3 January 2014.
On 5 January 2014 the adjudicator emailed Siemens with a question concerning the extension of time provisions in clauses SC2.5 and 2.3(a). On 6 January 2014 Siemens responded to those questions and also a question raised by the adjudicator in his email of 31 December 2013 concerning the effect of the decision on extension of time in the First Adjudication.
On 7 January 2014 Knowles sought leave to send a further short submission in response. On 9 January 2014 the adjudicator posed questions concerning the variations account and, in particular, which of the " incident numbers" dealt with in the First Adjudication were binding. Knowles and Siemens responded to those queries later on 9 January 2014. The adjudicator asked for the time for his decision to be extended from 14 to 21 January 2014. Knowles agreed on the same day and, after initially imposing conditions on such an extension, Siemens also agreed to extend time to 21 January 2014.
Siemens also sought permission to serve submissions in response to the surrejoinder. The adjudicator gave permission and Siemens emailed those submission on 10 January 2014. The adjudicator sent further emails asking for comments on various points. On 11 January 2014 the adjudicator requested Eurocom to provide some " signposting" in relation to various variations. Knowles responded to that request on 14 January 2014 in some seven emails.
On 16 January 2014 Siemens objected to the responses provided by Knowles which it said included substantial...
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