Imtech Inviron Ltd v Loppingdale Plant Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwards-Stuart,Mr. Justice Edwards-Stuart |
| Judgment Date | 03 December 2014 |
| Neutral Citation | [2014] EWHC 4006 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 03 December 2014 |
| Docket Number | Case No: HT-2014-000022 |
[2014] EWHC 4006 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
Mr. Justice Edwards-Stuart
Case No: HT-2014-000022
(Formerly HT-14-372)
Crispin Winser Esq (instructed by Bracher Rawlins) for the Claimant
Richard Bradley Esq (instructed by CE Law) for the Defendant
Hearing dates: 19 th November 2014
Approved Judgment
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.
Introduction
This is an application for summary judgment by the Claimant, Imtech Inviron Ltd ("Inviron"), to enforce an adjudicator's decision dated 9 October 2014 by which he directed the Defendant, Loppingdale Plant Limited, ("LPL") to pay Inviron the sum of £643,283.04.
The dispute arises out of work carried out at Stansted Airport. LPL had entered into a Framework Agreement with Stansted Airport Ltd ("Stansted") pursuant to which Stansted issued contracts to LPL known as Task Orders. It was contemplated that LPL would in turn sub-contract all or part of the work to Inviron by issuing Purchase Orders.
The dispute arose in relation to LPL's failure to pay the sum due to Inviron in respect of an interim payment application known as Application No 6. LPL says, and said from the outset, that the adjudicator had no jurisdiction because he had not been properly appointed.
Mr. Crispin Winser appeared for Inviron, instructed by Bracher Rawlins. Mr. Richard Bradley appeared for LPL, instructed by CE Law.
The issues
LPL contends that the adjudicator had no jurisdiction because:
i) by the terms of the contract the adjudicator was to be one of three named persons, which did not include this adjudicator, Mr. Ben Sareen, and in default of any of the named persons being willing and able to act, the adjudicator was to be nominated by the Institution of Civil Engineers; or
ii) the adjudicator purported to adjudicate different disputes arising under different contracts without the consent of all the parties contrary to paragraph 8(2) of the Scheme for Construction Contracts.
The contractual structure
The Framework Agreement
The Framework Agreement was made between Stansted and LPL and was for a defined term. Under the agreement LPL was appointed as one of Stansted's framework suppliers to provide services from time to time in accordance with Stansted's capital projects programme. The Framework Agreement did not commit Stansted to purchasing any particular works and/or services from LPL. Stansted was entitled to issue a Task Order pursuant to which LPL would be obliged to carry out certain works. Each Task Order was to be a separate contract. LPL was entitled to sub-contract the works specified in the Task Order.
Clause 45 of the Framework Agreement, entitled "Law and Jurisdiction", provided as follows:
"… This Agreement and all Task Orders awarded under it shall be deemed to have been made in England in accordance with English Law and shall be construed and interpreted in accordance with English Law and subject to the exclusive jurisdiction of the English Courts."
Schedule 4 to the Framework agreement included a document entitled "BAA Service Terms". Clause 100 of these terms was as follows:
"100.1 (1) A dispute arising under or in connection with this contract is referred to and decided by the Adjudicator. A Party may refer the dispute to the Adjudicator at any time.
100.2 (1) The Parties appoint the Adjudicator under the NEC Adjudicator's Contract current at the starting date.
…
100.4 (1) A Party does not refer any dispute under or in connection with this contract to the tribunal unless it has first been decided by the Adjudicator in accordance with this contract."
Schedule 6 contained definitions. The term "Parties" was defined to mean the parties to the "[Framework] Agreement and each Task Order as the case may be and the context requires". Although the term "Party" was not defined, I consider that it must be taken to have the same meaning, but in the singular, as in the definition of "Parties". The term "Subcontractor" was defined to mean a person or organisation who has a contract with LPL.
The Contract Data for use with the BAA Service Terms provided that the Adjudicator was to be one of three named persons agreed between the Employer and the Contractor, failing which the adjudicator was to be appointed by the Institution of Civil Engineers. Mr. Sareen was not one of these.
During the period of time relevant to this application LPL issued six Purchase Orders, one of which was E1629. Each Purchase Order contained a provision to the effect that Inviron was to submit valuations of the works to the end of each month and that these were to be submitted on the 16 th of each month. There was therefore a possibility that Inviron might submit a composite application on the 16 th of a month embracing work covered by more than one Purchase Order.
The Terms and Conditions of the Subcontract (September 2012 version)
Each Purchase Order issued by LPL stated that its terms and conditions were to be "as per contract + Stansted Airport September 2012". This referred to what were known as the September Conditions.
These provided as follows:
"1.1 These Terms and Conditions together with the Framework Agreement attached to these Terms and Conditions ('the Framework Agreement') together with the Purchase Order to be issued by LPL to the contractor for each sub-contract and the Task Order to be issued to LPL and a copy provided to the Subcontractor for each subcontract ('the Task Order') set out all the rights and obligations of the parties each to the other and no other terms or conditions shall be implied save to the extent that such terms and conditions are implied by statute save as may be agreed by the parties in writing.
…
1.3 The subcontract Works are executed as part of work to be carried out by LPL for its Customer under the Principal Contract as set out in the Framework Agreement and the Task Order (together 'the Principal Contract'). The Subcontractor shall be deemed to have read the Principal Contract and to be fully aware of the obligations, risks and liabilities assumed by LPL under them. The Subcontractor shall perform and assume, as part of its obligations under this contract, LPL's obligations, liabilities and risks contained within the Principal Contract that relate to the carrying out of the Task Order and/or Purchase Order as if they were expressly referred to in the subcontract as obligations, liabilities and risks of the subcontractor, all things being equal …. Schedule 1 is a list of the relevant clauses under the Principal Contract as a summary but this is provided entirely without prejudice to the Subcontractor's liability under this clause.
1.4 In the event of conflict between the terms and conditions of the Principal Contract and these Terms and Conditions the former shall take precedence save in relation to payment provisions set out in clause 1.16 of these Terms and Conditions which will always prevail. The order of priority without prejudice to this stated exception is
1.4.1 The Task Order
1.4.2 The Framework Agreement
(together "the Principal Contract")
1.4.3 These Terms and Conditions
1.4.4 The Purchase Order"
Mr. Winser relied also on the following provisions of the September Conditions:
"1.23 The provisions of the Principal Contract in respect of liability, insurance and Indemnification in respect of death or injury to persons and loss or damage to property shall apply between LPL and the Subcontractor under this contract as though they were respectively the Customer and LPL.
…
1.25 The contract shall be governed by English Law and the Subcontractor consents to the exclusive jurisdiction of the English Courts in matters regarding the Subcontract except to the extent that LPL invokes the jurisdiction of the Courts of any other country."
In relation to these conditions, Mr. Winser made the following points:
i) In clause 1.3 Inviron's obligations were to comply with LPL's obligations and liabilities that related
"… to the carrying out of the Task Order and/or Purchase Order as if they were expressly referred to in the sub-contract as obligations, liabilities and risks of the Subcontractor, all other things being equal".
This, submitted Mr. Winser, concerned what he described as primary obligations relating to the work to be carried out and how it was to be done rather than secondary obligations, such as those relating to insurance and indemnities.
ii) By contrast, clause 1.23 made specific provision for compliance by Inviron with certain secondary obligations, namely liability, insurance and indemnification in respect of death or injury to persons and loss or damage to property. Mr. Winser's point here was that this clause would not have been necessary if these obligations were covered by clause 1.3.
iii) Although Schedule 1 was said not to be an exhaustive list, Mr. Winser noted that all the obligations identified were what he described as primary obligations, and that this was therefore consistent with his submission in relation to clause 1.3.
iv) Clause 1.25 was different to the provision...
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