John Thompson Horseley Bridge Ltd v Wellingborough Steel & Construction Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE PHILLIMORE,LORD JUSTICE ROSKILL |
| Judgment Date | 18 February 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0218-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 February 1972 |
[1972] EWCA Civ J0218-3
In The Supreme Court of Judicature
Court of Appeal
(On appeal from decision of Mr. Justice Bristow, 18th January, 1972.)
The Master Of The Rolls,
Lord Justice Phillimore and
Lord Justice Roskill.
MR C. FRENCH, Q.C. and MR B. KNIGHT, (instructed by Messrs. Speechly, Mumford & Soames) appeared on behalf of the Appellants (Defendants).
MR D. GARDHAM, Q. C. and MR D. VALENTINE, (Instructed by Messrs. Love 11, White & King) appeared on behalf of the Respondents (Plaintiffs).
We need not trouble you, Mr. Gardham. This case raises a very short point. It arises out of the building contracts for the Regent Centre Hotel in Carburton Street, London, W.1. The employers were Centres hotel Ltd. The main contractors were J. Hill & Co. Ltd. The sub-contractors were the Wellingborough Steel and Construction Co. Ltd. The sub-sub-contractors were Carter Horseley Engineers.
The sub-sub-contract was for the steelwork. Carter Horseley Engineers agreed to erect the steelwork for a sum of £11,120. The contract was elaborated in a series of letters between 10th February, 1971 and April, 1971. The work was completed by the end of August, 1971. The sub-sub-contractors wanted payment; they wanted not only the £11,120, but also some extras for day work, the total being £12,166-69. The sub-subcontractors, Carter Horseley, issued a writ for the £12,166-69 against the sub-contractors, Wellingborough Steel and Construction Co. Ltd. In answer, Wellingborough sought to raise cross-claims for delay, the cost of remedial work and so forth. These cross-claims amount to £11,725-75. So, if these cross-claims are good, it would mean that they would eat up the claim. Carter Horseley would have done the work virtually for nothing.
The plaintiffs took out a summons under Order XIV for judgment. The Judge gave judgment for the plaintiffs, and refused a stay. The defendants appeal.
The plaintiffs rely on the recent decision in this court of Dawnays Limited -v- P. G. Minter and Trollope & Colls Ltd. (1971) 1 W.L.R. p.1212, and two later cases. Those cases were decided on the clauses in the ordinary R.I.B.A. forms of sub-contract and similar clauses. They apply not only to interim payments, but also to final payments. By those decisions, we have held thatonce the work is certified and the amount is due, it must be paid. It is not to be held up for cross-claims. Judgment must be given for the work done as certified. Any cross-claims must be dealt with in a separate action or arbitration.
In this case there was some discussion as to whether the R.I.E.A. form of contract was Incorporated Into the transaction. Reading through these letters, it seems to me plain that the printed conditions of the sub-sub-contractors were replaced entirely by the printed R.I.E.A. form (the green form, as it is called). The letter of the 24th March, 1971, said: "The form of contract between our client and ourselves Is that of the form issued by the National Federation of Building Tradd Employers for their use when the sub-contractor is nominated under the 1963 edition of the R.I.E.A. form of main contract - the conditions as stated therein stated shall prevail and over-rule all and any of your own."
The relevant clause of the sub-contract form is Clause 11 (b), which says: "Within fourteen days of the receipt by the Contractor of any certificate or duplicate copy thereof from the Architect the Contractor shall notify and pay to the sub-Contractor the total value certified therein in respect of the sub-Contract Works", less the retention money and the cash discount.
In the present case the certificates were issued in favour of the sub-contractors, Wellingborough, and not in favour of the sub-sub-contractors, Carter Horseley. I will give an instance:
"Nominated Sub-Contractors Certificate
J.M. Hill & Sons Ltd.
Certified that Messrs. Wellingborough Steel and Construction Company Limited are entitled to payment as set out below.
Contract Regent Centre Hotel Ltd. Carburton...
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