Platform Interior Solutions Ltd v ISG Construction Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 21 April 2020 |
| Neutral Citation | [2020] EWHC 945 (TCC) |
| Date | 21 April 2020 |
| Docket Number | Case No: HT-2020-000038 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2020] EWHC 945 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
The Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Roger Ter Haar QC
Sitting as a Deputy High Court Judge
Case No: HT-2020-000038
Rupert Choat (instructed through the Licensed Access Scheme) for the Claimant
Patrick Clarke (instructed by Brodies LLP) for the Defendant
Hearing date: 24 March 2020
Approved Judgment
Mr Roger ter Haar QC:
There is before the Court an application by the Claimant (“Platform”) to enforce an adjudicator's decision against the Defendant (“ISG”).
The Decision which I am asked to enforce was issued by Ms. Lisa Cattanach on 11 December 2019 in which she decided that Platform was due payment from ISG in the amount of £417,541.33 plus VAT.
ISG challenges this in two ways:
(1) By resisting Platform's application to enforce the Decision on the grounds set out below;
(2) By issuing proceedings under Part 8 in Claim No. HT-2020-000070 seeking declarations as follows:
“1. That the Decision of an Adjudicator dated 11 December 2019 is wrong and beyond rational justification;
2. That the Defendant is not entitled to the sums awarded by the Adjudicator; and/or
3. Insofar as this claim is determined prior to or at the same time as the Defendant's application for summary judgment, that the Defendant is not entitled to judgment enforcing the decision in Claim HT-2020-000038.”
Following an order made by O'Farrell J., Claim No. HT-2020-000070 will be the subject of a hearing on 24 April 2020.
This judgment follows a hearing which took place on 24 March 2020. Originally this was to be a traditional hearing in person. However, following government interventions arising out of the health emergency affecting this country and the rest of the world, the parties agreed that the hearing should take place by telephone conference. I thank the parties for their considerable co-operation in making this possible.
The Sub-Contract
On or about 24 January 2018 ISG engaged Platform to carry out, for the sum of £52,391.20 plus VAT, works forming part of ISG's redevelopment of Erskine House, Queen Street, Edinburgh, as a hotel.
By an ISG Variation Instruction to Proceed dated 12 April 2018, Platform's works were extended and/or the Sub-Contract was amended, so that the contract price was increased by £2,274,395.24 plus VAT less 1% Main Contractor's Discount. Platform's works included the provision and installation of partitions, ceilings, doors, ironmongery and associated joinery.
The Sub-Contract incorporated ISG's Sub-Contract Conditions (Self Billing) which included the following dispute resolution provisions:
(1) Clause 30 provided for adjudication governed by Part I of the Scheme for Construction Contracts (England and Wales) Regulations 1998, as amended by that Clause;
(2) Clause 30(2) specified the Royal Institution of Chartered Surveyors as the adjudicator nominating body.
Clause 27 of the Sub-Contractor Conditions was headed “Termination of Sub-Contractor's Employment” and provided:
“(1) ISG may without prejudice to any other of its rights or remedies immediately terminate the Sub-Contactor's employment under this Sub-Contract in respect of the whole or any part of the Works if the Sub-Contractor:
….
(h) is in material or persistent breach of this Sub-Contract.
….
(4) The Sub-Contractor shall within 14 days of being so notified, submit an application for payment for works executed by him up to the date of termination. Such application shall be treated in all respects as if it was a final account submitted by the Sub-Contractor pursuant to clause 2(12) and the procedures set out in clause 2 shall apply in respect of such an application.
(5) ISG shall be entitled to recover from the Sub-Contractor all losses, expenses, costs and damages suffered or which may be suffered by ISG by reason of such termination.”
The Adjudication Claim
The Adjudicator, Ms Lisa H Cattanach BSc, LL.M, FRICS, FCIArb, was appointed Adjudicator on 30 October 2019.
By then, Platform had served a Notice of Adjudication.
The Notice was headed “Notice of Intention to Refer a Dispute to Adjudication”. This said, in part:
“Platform have submitted Applications for Payment throughout the progress of the works, in particular Application for Payment No. 11 dated 17 January 2019 for the period ending 21 December 2018 (the end of the further 42 week Subcontract period from 12 April 2018) in the gross value of £2,148,893.42 less 1% MCD producing an amount due of £515,445.35 plus VAT, and subsequently Platform submitted Application for Payment No. 12 on 7 February 2019 for the period ending 18 January 2019 in the gross value of £2,191,318.62 less 1% MCD less previous payments to date by ISG of £1,548,137.00 producing an amount due of £556,186.27 and further, as a result of the repudiation of the Subcontract by ISG and the rescinding of the Subcontract by Platform, the retention amount of £65,082.16 is also considered due. Further, ISG have failed to response to Platform's Valuation 12 Application, with neither a Payment Notice or Pay Less Notice, and therefore the whole amount due is £621,268.43 plus VAT (£556,186.27 plus retentions of £65,082.16). A spreadsheet schedule of summary difference is attached as part of this Notice of Adjudication, being the crystallised Dispute.
This crystallised Dispute between the parties is formally that gross valuation balance due to Platform of £621,268.43 plus VAT, as set out in the third paragraph of this Notice, to be decided by an appointed Adjudicator in accordance with the provisions of the Subcontract for an Adjudication to be governed by the Scheme for Construction Contract (England and Wales) Regulations 1998 (as amended in 2011) and with the said Adjudicator to be appointed by the appropriate Adjudicator Nominating Body, and application will be made to the Royal Institution of Chartered Surveyors as per Clause 30(2) of the Subcontract.”
On 30 October 2019 Ms Cattanach accepted nomination as the Adjudicator in the Dispute.
On 31 October 2019 Platform served its Referral Notice. This was accompanied by 14 lever arch files of documents.
Paragraph 7 asserted that ISG had repudiated the Sub-Contract:
“Since entering into the Subcontract arrangement dated 24 January 2018 in a value of £52,391.20 and incorporating, but not limited to, the ISG Sub-Contract Conditions (Self Billing) as modified by mutual agreements, and as further substantially extended in scope and financial value by an ISG Variation Instruction to Proceed dated 12 April 2018 in the sum of £2,274,395.24 less 1% MCD, Platform have undertaken the Subcontract works until repudiations of the Subcontract by ISG, resulting in Platform rescinding the Subcontract on 18 January 2019.”
Paragraph 13 set out Platform's position on the amount due to Platform from ISG:
“This lever arch file contains introductory notes wherein Platform have submitted Applications for Payment throughout the progress of the works, in particular Application for Payment No. 11 dated 17 January 2019 for the period ending 21 December 2018 (the end of the further 42 week Subcontract period from 12 April 2018) in the gross value of £2,148,893.42 less 1% MCD producing an amount due of £515,445.35 plus VAT, and subsequently Platform submitted Application for Payment No. 12 on 7 February 2019 for the period ending 18 January 2019 in the gross value of £2,191,318.62 less 1% MCD less previous payments to date by ISG of £1,548,137.00 producing an amount due of £556,186.27 and further, as a result of the repudiation of the Subcontract by ISG and the rescinding of the Subcontract by Platform, the retention amount of £65,082.16 is also considered due. Further, ISG have failed to respond to Platform's Valuation 12 Application, with neither a Payment Notice or Pay Less Notice, and therefore the whole amount due is £621,268.43 plus VAT (£556,186.27 plus retentions of £65,082.16). A spreadsheet schedule of summary difference is attached to the Notice of Adjudication, being the crystallised Dispute, as enclosed in Volume 14 at Tab 41.”
Paragraph 35 of the Notice identified the Dispute as follows:
“The current crystallised Dispute between the parties in terms of Platform's Applications for Payment, principally No. 11 dated 17 January 2019 and subsequently No. 12 dated 7 February 2019 in the gross value of £2,191,318.62 less 1% MCD and with payments to date by ISG of £1,548,137.00 producing a balance due to Platform of £621,268.43 plus VAT, as set out in paragraph 13 of this Notice, which produces the Dispute between the parties to be valued and decided by yourself as the appointed Adjudicator as sought in the Notice of Adjudication and in this Referral Notice in terms of the Redress sought.”
The principal Redress sought was as follows:
“1. That Platform are due the payment of the outstanding unpaid value of the Subcontract works from the Responding Party, ISG, in terms of measured works, variations, changes, additional preliminaries and additional expense costs of delays and the extended Subcontract period with reference to the Referring Party's Applications for Payment No. 11 dated 17 January 2019 and subsequently No. 12 dated 7 February 2019 as set out in the third paragraph of this Notice in the outstanding principal sums amounting to £621,268.43 plus VAT as set out in the attached spreadsheet of summary difference, being the crystallised Dispute, or such other sum or...
To continue reading
Request your trial
-
ISG Construction Ltd v Platform Interior Solutions Ltd
...11 December 2019. I granted summary judgment as sought by Platform. 2 That judgment can be found on Bailii: Neutral Citation Number [2020] EWHC 945 (TCC). I do not intend to burden this judgment by a recital of matters contained in that judgment save to the minimum extent necessary for the......
-
Reports From The Courts - August 2020
...policy' and that it is possible to contract out of its application. Platform Interior Solutions Limited v ISG Construction Limited [2020] EWHC 945 (TCC); Ter Haar ISG Construction Limited (ISG), a construction services company, engaged Platform Interior Solutions Limited (Platform), commerc......
-
Business As Usual For Adjudication Enforcement
...4 WLUK 45 Broseley London Ltd v Prime Asset Management Ltd [2020] EWHC 944 (TCC) Platform Interior Solutions Ltd v ISG Construction Ltd [2020] EWHC 945 Originally published 8 June The content of this article is intended to provide a general guide to the subject matter. Specialist advice sho......