R (DA SILVA) v ASYLUM and IMMIGRATION TRIBUNAL (1) MIDLAND EXPRESSWAY Ltd (trading as m6 toll) (2) Secretary of State for TRANSPORT (previously the Secretary of State for the Environment, Transport and the regions) and (1) CARILLION CONSTRUCTION Ltd (2) ALFRED MCALPINE CONSTRUCTION Ltd (3) BALFOUR BEATTY GROUP Ltd (4) AMEC CAPITAL PROJECTS Ltd (joint venture known as CAMBBA CONSTRUCTION GROUP) (No. 3)
| Jurisdiction | England & Wales |
| Judgment Date | 13 June 2006 |
| Neutral Citation | [2006] EWHC 1505 (TCC) |
| Docket Number | Claim No HT-06-073 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 June 2006 |
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
St Dunstan's House
133-137 Fetter Lane
London EC4A 1HD
Mrc Justice Jackson
MR JOHN BLACKBURN QC and MR DARRYL ROYCE (instructed by Davies Arnold Cooper) appeared on behalf of the First Claimant, Midland Expressway Limited.
MR DAVID BLUNT QC and MS CLAIRE PACKMAN (instructed by the Treasury Solicitor) appeared on behalf of the Second Claimant, Secretary of State for Transport.
MR DAVID STREATFEILD-JAMES QC and MS NERYS JEFFORD (instructed by Wragge & Co LLP) appeared on behalf of the Defendants
MR JUSTICE JACKSON: This judgment is in eight parts, namely part 1, introduction; part 2, the contractual provisions; part 3, the facts; part 4, the present proceedings; part 5 is the present action time-barred?; part 6, was the adjudicator right to conclude that there was no dispute capable of being adjudicated arising out of CAMBBA's claim for indirect costs?; part 7, were CAMBBA entitled to withdraw any claim which they made for the indirect costs of DC11?; part 8, conclusion.
Part 1: INTRODUCTION
This action concerns a challenge to the decision of an adjudicator, Mr Nicholas Dennys QC. This is the third action between Midland Expressway Ltd (to whom I shall refer as "MEL") and the CAMBBA Construction Group. The CAMBBA Construction Group is a joint venture comprising four construction companies, namely Carillion Construction Ltd, Alfred McAlpine Construction Ltd, Balfour Beatty Group Ltd and AMEC Capital Projects Ltd. The four joint venture companies are generally referred to by the collective name "CAMBBA".
In this action, MEL is first claimant and the Secretary of State for Transport is second claimant. CAMBBA are the four defendants to this action.
By an agreement dated 28th February 1992 ("the Concession Agreement") the Secretary of State for Transport granted to MEL the right to design, construct and operate the Birmingham Northern Relief Road. This is a motorway which is now more generally referred to as "the M6 toll road". On 27th September 2000 MEL and CAMBBA entered into a contract ("the D&C contract") for the design and construction of the M6 toll road. CAMBBA commenced work in late 2000 and achieved completion some three years later.
The M6 toll road was opened to the public in December 2003. There remain, however, some contractual disputes between the parties. These have been the subject of numerous adjudications and previous litigation.
For further background information about the history of the project and the disputes between the parties, reference should be made to Midland Expressway Ltd v Carillion Construction Ltd (number 1) [2005] EWHC 2810 (TCC) and Midland Expressway Ltd v Carillion Construction Ltd (number 2) [2005] EWHC 2963 (TCC).
In this judgment I shall use the abbreviation "DA" for the department's agent. The DA represented the Secretary of State in numerous respects and was empowered to issue instructions on behalf of the Secretary of State. The Highways Agency also acted on behalf of the Secretary of State in relation to the M6 toll road.
Occasional reference will be made in this judgment to the "PDS scheme". This is a set of drawings which were prepared after planning approval had been obtained and which formed part of the tender documents.
The solicitors for the parties, who will occasionally feature in the narrative section of the judgment, are as follows: Davies Arnold Cooper ("DAC") are the solicitors for MEL, the first claimant. The Treasury Solicitor acts for the Secretary of State, the second claimant. Wragge & Co are the solicitors for CAMBBA, the first to fourth defendants. I shall use the abbreviation "DC11" as a shorthand for department's change number 11.
The Housing Grants, Construction and Regeneration Act 1996 will be referred to as "the 1996 Act". The scheme which is set out in the schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998 will be referred to as "the Scheme".
After these introductory remarks, I must now read out the contractual provisions which are relevant to the present dispute between the parties.
Part 2: THE CONTRACTUAL PROVISIONS
Clause 8 of the Concession Agreement deals with department's changes. Clause 8 provides:
"8.1 The department's agent may at any time prior to the issue of the maintenance certificate issue a request in writing to the concessionaire for a department's change …
"8.1.3 Where, in the opinion of the concessionaire, a department's change would require additional payment to the contractor or the grant of an extension to the period for completion for the purposes of the construction contract or lead to an additional expense to the concessionaire or any associate to whom there has been an assignment pursuant to clause 35.2 or lead to a reduction or delay in revenue from or an increase in the operating or maintenance costs of the project … the concessionaire shall furnish the department's agent within 28 days of the request or, as the case may be, of agreement or final determination to proceed with the department's change following an objection pursuant to clause 8.1.2 … with a statement of the order of magnitude of:
"8.1.3.1 The value of the additional payment, if any, to the contractor and/or the concessionaire relating to the proposed works;
"8.1.3.2 The length of any extension of time which the concessionaire believes the contractor would be entitled to under the construction contract and the concessionaire would be entitled to under the concession agreement;
"8.1.3.3 The amount of any direct loss and/or expense to which the contractor may be entitled under the construction contract."
It should be explained at this point that payments made to the contractor of the kind described in clause 8.1.3.1 are generally referred to as "direct costs". Payments of loss and expense made to the contractor of the kind described in clause 8.1.3.3 are generally referred to as "indirect costs".
Clause 8.1.6 provides:
"If the parties are unable to agree the concessionaire's estimates, then either the department's agent shall withdraw the notice or the Secretary of State shall agree to make payment therefor on an interim basis in accordance with the procedures of payment contained in the construction contract and, in the latter case, the concessionaire shall submit the department's change certificate to the department's agent for countersigning by it and the following provisions shall apply:
"8.1.6.1 The concessionaire shall cause the contractor to identify, in any application for an interim payment under the construction contract as a separate item, the amounts claimed in respect of such department's change and, to the extent appropriate, provide vouchers evidencing such amounts. The concessionaire shall also provide to the department's agent relevant documentation evidencing the costs referred to in clauses 8.1.3.1, 8.1.3.4 and 8.1.3.5.
"8.1.6.2 Evaluation of the value of the department's change shall be made by the department's agent within 21 days of submission of the documents referred to in clause 8.1.6.1:—
"8.1.6.2.1 Applying the principles contained in the construction contract, including but without limitation, those relating to costs incurred for delay and disruption, if any …
"8.1.6.3 Where the concessionaire has proceeded in accordance with clause 8.1.6 the Secretary of State shall pay to the concessionaire the amount determined pursuant to clause 8.1.6.2 or, if the concessionaire shall object to such determination, as determined by the disputes resolution procedure…"
Schedule 15 to the Concession Agreement sets out the dispute resolution procedure which is to be followed in the event of a dispute. A revised version of schedule 15 was substituted by schedule 8 to the second supplemental agreement to the Concession Agreement. This has led to some slight confusion in that the relevant schedule is sometimes referred to as "schedule 8" and sometimes referred to as "schedule 15". In this judgment I shall refer to it as "schedule 15".
Schedule 15 to the Concession Agreement includes the following provisions:
"1.1 If a dispute arises, whether before or after the concession commencement date and whether before or after termination of the Concession Agreement, then, except where a dispute is expressly stated in the Concession Agreement to be referable to the dispute resolution procedure, the dispute shall, subject to paragraph 3.1.3 and 1.4, first be referred by notice in writing to the Chairman of the concessionaire and the official of the Department of Environment, Transport and the Regions (DTR) who the Secretary of State shall have nominated for the purpose of paragraph 1 no later than the concession commencement date, who shall meet and endeavour to resolve the dispute. Any joint and unanimous decision of the said Chairman and the said official made in writing to and signed by both shall be binding upon the parties …
"2 Referral to adjudicator. If
"2.1 The Chairman and the official referred to in paragraph 1.1 above or, where applicable, their respective nominees under paragraph 1.2 are unable to agree on any matter comprised in the dispute within 28 days of the reference to them;...
To continue reading
Request your trial
-
Lanes Group Plc v Galliford Try Infrastructure Ltd
... ... Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official ... Proceedings in the Technology and Construction Court, Part 4 ... The Appeals to the Court of ... is Galliford Try Infrastructure Limited trading as Galliford Try Rail, to which I shall refer as ... undertaking, inter alia, infrastructure projects in the public and related sectors. This dispute ... for later adjudication was recognised in Midland Expressway Ltd v Carillion Construction Ltd (No ... of Lords' decision arising out of the well known "Homes for Votes" saga in Westminster ... the concept requires not only that the tribunal must be truly independent and free from actual ... 49 In Gillies v Secretary of State for Work and Pensions [2006] UKHL ... is alleged against an adjudicator: see Amec Capital Projects Ltd v White Friars City Estates ... ...
-
Lanes Group Plc v Galliford Try Infrastructure Ltd
... ... BENCH DIVISION TECHNOLOGY AND CONSTRUCTION COURT Royal Courts of Justice Strand, ... Case No: HT–11- 190 and 194 ... Between: ... to make it because GTI had previously commenced, but not pursued, an adjudication on ... must act impartially but does not state the (obvious) consequence that if he does not, ... of Jackson J (as he then was) in Midland Expressway v Carillion [2006] BLR 325 ... This was ... when the result of the underlying claim is known. And there is only any point to my dealing with ... judgment of Dyson LJ (as he then was) in Amec Capital Projects Limited v Whitefriars City ... "In my judgment, the mere fact that the tribunal has previously decided the issue is not of itself ... ...