LJR Interiors Ltd v Cooper Construction Ltd
| Jurisdiction | England & Wales |
| Judge | Russen |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 3339 (TCC) |
| Docket Number | Case No: HT-2022-BRS-000026 and HT-2022-BRS-000027 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2023] EWHC 3339 (TCC)
HHJ Russen KC
Case No: HT-2022-BRS-000026 and HT-2022-BRS-000027
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS AT BRISTOL
TECHNOLOGY & CONSTRUCTION COURT (QBD)
2 Redcliff Street
Bristol BS1 6GR
Phil Mosson (surveyor) for LJR Interiors Limited (acting by its director Luke Tomes)
Harry East (instructed by Hill Dickinson LLP) for Cooper Construction Limited
Hearing dates: Thursday 17 th November and 22 nd December 2022
Approved Judgment
This judgment (a draft of which was circulated to the parties on 7 January 2023) was handed down remotely at 10.00am on 11 January 2023 by circulation to the parties by email and its release to The National Archives.
HHJ Russen KC
HHJ Russen KC:
Introduction
This is my judgment on the Part 7 Claim issued by LJR Interiors Limited (“ LJR”) seeking enforcement, through the grant of summary judgment against Cooper Construction Limited (“ Cooper”), of an adjudicator's decision (“ the Part 7 Claim”, Claim No. HT-2022-BRS-000026) and on the Part 8 Claim issued by Cooper seeking a declaration that the adjudicator's decision is void and unenforceable on the ground that the sum awarded in LJR's favour by the adjudicator was barred by limitation (“ the Part 8 Claim”, Claim No. HT-2022-BRS-000027). The Part 8 Claim resists enforcement of the adjudicator's decision dated 28 September 2022 (“ the Decision”) on that basis.
The Part 7 Claim and the Part 8 Claim have therefore been brought in accordance with the procedure for Adjudication Business prescribed by Section 9 of the TCC Guide. On 7 October 2022 I made the usual expedited directions for the hearing of the application for summary judgment on the Part 7 Claim on 17 November 2022. On 20 October 2022 Cooper issued the Part 8 Claim. Cooper contend that the Part 8 Claim falls squarely within the type of challenge recognised by Coulson J, as he then was, in Hutton Construction Ltd v Wilson Properties (London) Ltd [2017] EWHC 517 (TCC). In a passage of the judgment now replicated in paragraphs 9.4.4 and 9.4.5 of the TCC Guide, the judge said, at [17], that in order to resist summary judgment on an adjudication enforcement application by reference to a competing claim for declaratory relief under CPR Part 8:
“……….. the defendant must be able to demonstrate that: (a) there is a short and self-contained issue which arose in the adjudication and which the defendant continues to contest; (b) that issue requires no oral evidence, or any other elaboration beyond that which is capable of being provided during the interlocutory hearing set aside for the enforcement; (c) the issue is one which, on a summary judgment application, it would be unconscionable for the court to ignore.”
Under the expedited directions made on 7 October 2022, the Part 7 Claim was listed for a remote hearing of 90 minutes held via Microsoft Teams on 17 November 2022. The Part 8 Claim was then issued on 20 October 2022 with a request by Cooper's solicitors that it be listed for hearing at the same time on the basis of their view that both claims should be capable of being dealt with within that time estimate. At the hearing on 17 November 2022 LJR was represented by Mr Phil Mosson, LJR's surveyor through whom with my permission (and Cooper taking no objection) LJR made their representations, and by Mr Harry East on behalf of Cooper.
In the event, towards the end of a 90 minute hearing held remotely on that date I reached the conclusion that it was appropriate to adjourn both claims to a further hearing. The claims were listed for a further remote hearing on the afternoon of 22 December 2022.
The adjournment was to enable the parties to clarify their respective positions as to the date upon which LJR's right (if any) to payment of the sum awarded by the adjudicator accrued for limitation purposes. This was in circumstances where (so it then appeared) not only the Part 8 Claim Form but also the evidence in support omitted through clerical error to identify the date by which Cooper said the contract works undertaken by LJR were completed; where LJR's Application for Payment No. 3 (to which I return below) was neither in evidence nor in the court bundle but (once it had been clarified that it was still available to the parties) was a document which Mr East had offered to share by screen shot during the course of the hearing; and where, in response to me seeking to establish whether there was meaningful agreement over the accrual date in circumstances where they were not legally represented, LJR confirmed through Mr Mosson that they did not accept that all of the sums covered by Application for Payment No. 4 (upon which the adjudicator based his decision) had fallen due for payment more than 6 years before the date of that application. [In fact, as was pointed out in the further evidence filed by Cooper after the hearing, although the date relied upon for completion of the works was omitted by error from the Claim Form and the paragraph (number 17) of the supporting witness statement I had been focussing upon, the date was given elsewhere in that statement as “ on or about 19 October 2014”.]
LJR had not filed any evidence on the accrual date(s) point before the hearing on 17 November 2022. Although it therefore could not be said, by the end of that hearing, that the Part 8 Claim looked to be in danger of falling on the wrong side of a line aimed at identifying the proper limits of defensive declaratory relief in the adjudication enforcement context (see the authorities mentioned in paragraph 45 below) the other note of caution expressed by Coulson J in Hutton v Wilson, at [12], about the issues raised by such a claim potentially being less suitable for a shorter expedited hearing, was one which had begun to resonate.
At the hearing on 17 November, I was acutely aware that LJR was not legally represented on a claim which involved a challenge by Cooper grounded upon an alleged error of law on the part of the adjudicator. The point was said to be one which met the Hutton v Wilson test. Although the adjudicator had engaged with an argument on limitation, applying that test it therefore seemed to me to be appropriate to go back to basics, beginning with Cooper's case on the application of the Limitation Act 1980 (“ the 1980 Act”) to adjudication proceedings. I was also conscious that Cooper's approach to the limitation point before the adjudicator was, as I explain below, slightly different from the point made in the evidence (as it was then) in support of the Part 8 Claim. The initial approach on the Part 8 Claim was simply that the cause of action had accrued no later than completion of the works under the contract between the parties in October 2014, so that LJR's claim for payment made on 31 July 2022 (“ Application No. 4”) was statute barred by the time it was referred to adjudication in September 2022. It was Mr East's submissions at the hearing which took the point before me (as it had been taken by Cooper in the adjudication) that the claim was a re-submission of one already made of 31 October 2014 (“ Application No. 3”).
Accordingly, after the adjourned hearing and mindful of the conclusion on the Part 8 Claim being urged upon me by Cooper, on 14 December 2022 I sent an email to the parties in the following terms:
“I am writing in advance of the adjourned hearing of the Part 7 adjudication enforcement claim and the Part 8 Claim listed for 22nd December. I have decided to write to you because I am conscious that LJR is not legally represented in circumstances where Cooper's challenge to the adjudicator's decision is based upon the adjudicator having made a clear error of law. In advance of the next hearing, I would therefore be grateful if the parties (and in particular Cooper) would address their minds further to the following points:
1. The basis on which the Limitation Act 1980 (in this case section 5) is said to apply to adjudication proceedings. Mr East has pointed to the obiter dicta in the Anglian Water and Connex cases which assume a limitation defence may be taken in adjudication proceedings. On a very quick review of the textbooks, I also see that Keating on Construction Contracts (11th ed), at para.16–047 states that, when raised, limitation is a “substantive defence” to be considered by an adjudicator (no authority is cited); though I could not immediately see anything directly on the point in Coulson on Construction Adjudication (4th ed). I raise this now, on a point which most lawyers and judges might otherwise be guided by instinct, because s. 5 (and s. 8) of the 1980 Act applies to an “action” under a contract; and section 38 provides that “ unless the context otherwise requires, “action” includes any proceedings in a court of law, including an ecclesiastical court.” I recognise that this definition has been expressly extended by section 13(1) of the Arbitration Act 1996 to cover arbitral proceedings. Are you able to assist me further as to the legal basis on which the “cause of action” (per s. 5) may barred in a dispute referred to adjudication more than 6 years after its accrual?
2. In relation to accrual, the adjudicator essentially proceeded on the basis that only the provisions of Part II of the Scheme (once triggered by the making of a claim for payment) and specifically the deadline for Cooper to give a pay less notice were relevant to the question of lapse of time (or “delay”). His conclusion was that Application No. 4 was not invalid because “ the Scheme does not contain any provision limiting when a claim for payment under a relevant construction contract may be made” (paragraphs 22 and 28). I recognise that Cooper's position in Mr Oram's...
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