RCS Contractors Ltd v Anthony Conway
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Coulson |
| Judgment Date | 04 April 2017 |
| Neutral Citation | [2017] EWHC 715 (TCC) |
| Docket Number | Case No: HT-2016-000047 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 04 April 2017 |
[2017] EWHC 715 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Coulson
Case No: HT-2016-000047
James Fairbairn of Dentons UKMEA LLP for the Claimant
The Defendant was in Person
Hearing date: 4 April 2017
INTRODUCTION
The claimant, RSC Contractors ("RSC") seeks £59,551.65 inclusive of interest pursuant to the decision of an adjudicator dated 25 November 2015. On 6 May 2016, the defendant, Mr Conway, successfully obtained leave to defend the claim "limited to the sole ground that the adjudicator had no jurisdiction, because it is said he has wrongly concluded that there was one construction contract for the works at the three sites": see the order of Soole J dated 6 May 2016. For reasons which are unexplained, the trial of that issue has not occurred until today, 4 April 2017.
FACTUAL BACKGROUND
RSC carried out groundworks for Mr Conway as a sub-contractor at three sites: Walmer Road, Notting Hill, London; Middlemas Green, Pewsey, Wiltshire; and Ridge Road, Sutton, Surrey. RSC say that there was one oral contract for the work at these sites, but Mr Conway maintains that there were three separate oral contracts and that, in consequence, the adjudicator did not have the necessary jurisdiction. That is now the only issue for the court to decide.
For completeness, I note that Mr Conway has advanced other arguments in the past about the precise contractual relationship between Shaw Interiors Limited ("Shaw"), RSC and himself. At one stage, he was suggesting that he was not a party to any contract with RSC at all. However, it is plain from the documents that these issues no longer arise because the remaining dispute — was there one or more contracts between the parties? — presupposes that the relationship between Mr Conway and RSC was a relationship between contractor and sub-contractor. Any doubt about that as the starting-point of the court's investigation was, in any event, dispelled by:
(a) Shaw's letter of 9 January 2015, procured by Mr Conway in the adjudication, which referred to RSC's contract with Mr Conway, and noted that the work was then performed by "your sub-contractor RSC";
(b) Paragraph 6 of Mr Conway's witness statement which said "I have entered into three different contracts with Shaw Interiors by then, and I have sub-contracted them to RSC Limited separately at different point of time in 2013".
THE LAW
Section 108(1) of the Housing Grants Construction Regeneration Act 1996 ("the 1996 Act") provides that:
"A party to a construction contract has the right to refer a dispute arising out of the contract for adjudication."
Because there was no written contract in this case, it was common ground that the Scheme for Construction Contracts, England and Wales Regulations 1998 (as amended) applied.
The orthodox view is that s.108(1) allows the reference of a single dispute to adjudication, and there are a number of authorities where the attempted reference of more than one dispute at the same time was found to have deprived the adjudicator of jurisdiction. Although that view was challenged by Ramsey J in Willmott Dixon Housing Limited v Newlon Housing Trust [2013] EWHC 798 (TCC), his remarks were obiter and have not been subsequently adopted: see for example the judgment of Akenhead J in TSG Building Services PLC v South Anglian Housing Limited [2013] EWHC 1151 (TCC). I shall therefore decide this case on the orthodox basis that an adjudicator approved under the Scheme can only decide one dispute at a time.
Of course, any difficulties that might have arisen from this approach have been ameliorated by the broad interpretation given by the courts to the word "dispute". In a much-cited passage, HHJ Thornton QC in Fastrack Contractors Limited v Morrison Construction Limited [2000] BLR 168, defined a single dispute as follows:
"20. …During the course of a construction contract, many claims, heads of claim, issues, contentions and causes of action will arise. Many of these will be, collectively or individually, disputed. When a dispute arises, it may cover one, several or many of one, some or all of these matters. At any particular moment in time, it will be a question of fact what is in dispute. Thus, the 'dispute' which may be referred to adjudication is all or part of whatever is in dispute at the moment that the referring party first intimates an adjudication reference. In other words, the 'dispute' is whatever claims, heads of claim, issues, contentions or causes of action that are in then in dispute which the referring party has chosen to crystallise into an adjudication reference."
Because of the width of that test, there are few cases where the court has concluded that the adjudicator did not have the necessary jurisdiction because more than one dispute had been referred simultaneously. By far the biggest category of case in which it has been argued that more than one dispute was referred, thereby depriving the adjudicator of jurisdiction, is where there was more than one contract between the parties. Thus:
(a) In Grovedeck Limited v Capital Demolition Limited [2000] BLR 181 HHJ Bowsher QC decided obiter that, because there were claims under two separate contracts, there could not be one single dispute and the adjudicator's decision was not enforced.
(b) In Enterprise Managed Services Limited v Tony McFadden Utilities Limited [2009] EWHC 3222 (TCC), TML were insolvent assignors to the defendant of claims against Enterprise under 4 separate contracts. Under rule 4.90 of the Insolvency Rules, the financial position under all 4 contracts had to be considered together, not just by reference to one contract only, thereby depriving the adjudicator of jurisdiction.
(c) By contrast, in AMEC Group Limited v Thames Water Utilities Limited [2010] EWHC 419 (TCC), although there were numerous works contracts, the parties' overarching contractual obligations were set out under a single framework agreement. The judge decided that the dispute arose under that single contract, so that there was no jurisdictional issue.
(d) In Viridis UK Limited v Mulally & Co Limited [2014] EWHC 268 (TCC), the works involved the replacement of windows and doors in a number of different locations. Summary judgment was not ordered because the claimant had not shown that there was a single overarching contract between the parties.
Accordingly, the issue which I have to decide is a simple one. Either, as RSC maintains, there was one contract between the parties to cover all three sites, in which case the final account dispute was a single dispute, and the adjudicator had the necessary jurisdiction; or, as Mr Conway maintains, there were three separate contracts, one in respect of each site, and the dispute was actually three different disputes, being a claim for the sum allegedly due under each separate contract. If that was right, the adjudicator would not have had the necessary jurisdiction.
THE ADJUDICATOR'S FINDINGS AND THE SUBSEQUENT EVIDENCE
The adjudicator's findings were recorded in paragraph 2.16 of his decision as follows:
"2.16 I issued my non-binding decision on the challenge on 19 October 2015 as follows:
I refer to the jurisdictional challenge, dated 16 October 2015, made by Mohammed Al Haque for and on behalf of Mr Conway and the response by Messrs Dentons, dated 19 October 2015, for and on behalf of PSC Contractors Ltd RSC). I acknowledge receipt of Mr Haque's further submission on 19 October 2015 by email.
On the evidence adduced before me I understand that during May and June 2012 Mr Conway concluded three contracts with Shaw Interiors Ltd (Shaw) for groundworks at three sites – Walmer Road Notting Hill, London; Middlemas Green, Pewsey, Wiltshire; and Ridge Road, Sutton, Surrey.
In or about November 2012 Mr Conway met Mr Evan O'Rourke, a director of RSC Contractors Ltd, at which meeting they agreed that Mr Conway would attempt to procure construction contracts for RSC in consideration for a fee of £l,500 per week. Mr Conway apparently informed Mr O'Rourke that there was a possibility that he would...
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