Sudlows Ltd v Global Switch Estates 1 Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 21 December 2022 |
| Neutral Citation | [2022] EWHC 3319 (TCC) |
| Docket Number | Claim Nos: HT-2022-000371 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2022] EWHC 3319 (TCC)
Mr Justice Waksman
Claim Nos: HT-2022-000371
HT-2022-000403
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Roger Stewart KC and George Mcdonald (instructed by Pinsent Masons LLP, Solicitors) for the Claimant
Alexander Nissen KC (instructed by Macfarlanes LLP, Solicitors) for the Defendant
Hearing date: 13 December 2022
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email, and release to National Archives. The date and time for hand-down is deemed to be 2pm on Wednesday 21 December 2022
INTRODUCTION
In this case, the contractor, Sudlows Ltd (“Sudlows”) has brought a Part 7 claim against the employer, Global Switch Estates 1 Ltd (“Global”) to enforce a decision of the adjudicator, Mr Molloy, dated 9 September 2022. The decision was that Global should pay Sudlows a total of £996,898.24 plus VAT. This was the 6 th adjudication between these parties (“Adjudication 6”). Sudlows' present application is to obtain summary judgment against Global for the enforcement of that adjudication decision, in the usual way. This is resisted by Global.
Further, Global has brought Part 8 proceedings against Sudlows which have two parts. The first is for a declaration that, in making his decision, Mr Molloy acted in breach of natural justice. That is because he wrongly took too narrow a view of his own jurisdiction by holding that he was bound by certain findings (to put it neutrally) made by a different adjudicator, Mr Curtis, in the previous adjudication (“Adjudication 5”). This element of the Part 8 claim is the mirror image of Global's defence to Sudlows' application for summary judgment.
The second part of Global's Part 8 claim is to obtain enforcement of alternative findings (again to put it neutrally) made by Mr Molloy which are said to apply if he was wrong to hold that he was bound by Mr Curtis's decision in Adjudication 5. Here, he held that if he was wrong, his alternative decision, on the merits of the matters before him in Adjudication 6, was to the opposite effect i.e. it would not be in favour of Sudlows but rather Global, to the extent that Sudlows would now have to pay Global £209,053.01 plus VAT, interest and fees.
BACKGROUND
The Works
The underlying contract between Sudlows and Global was in JCT Design and Build 2011 form and dated 22 December 2017. The works as a whole were for the fit out of a data hall, installation of 5 chillers on the roof and provision of future infrastructure service connections for 8 new chillers at Global's premises at East India Docks House London E14 (“the Site”). The total contract sum was £14,829,738.
The work with which these proceedings are concerned related to what is known as Section 2 of the sectional completion. This involved, among other things, the creation of a new private electricity substation at the Site. Part of that operation involved getting new relevant high-voltage cables to the Site from another part of Global's premises on the other side of the main road which divided them. That, in turn, required the creation of ductwork under the road and into the Site.
The ductwork, which constituted enabling works, was constructed by or at the instruction of Global. It should have been completed by February 2018, when Sudlows was due to start work, but in fact this did not happen until 28 May 2019. Sudlows then started to install the cables on that date. When Sudlows pulled the heavy cables through the ductwork on 21 June 2019, one of the cables was damaged. At the time, Sudlows said that this was due to the defective nature of the ductwork and that it had been provided with misleading information about the line level and gradient thereof.
Another set of cables was duly provided and pulled through in the summer of 2020 by a different contractor. However, Sudlows then refused, it was alleged, to terminate, connect and then energise, i.e. put power into, those cables. There is a dispute as to what, precisely, Sudlows was asked and not asked to do at this point, but it does not matter for present purposes.
The result of Sudlows' refusal, right or wrong, was an ongoing delay in the completion of the cabling work and thus the enablement of the power to be supplied to the Site.
Adjudication 5
On 18 January 2021, Sudlows applied for an adjudication, the point of which was to decide whether it was entitled to an extension of time (“EOT”) for what is known as Window 29 which was that part of Section 2 which ran from 29 May 2020 to 18 January 2021. Sudlows had sought that EOT from Global which had refused to grant it. Paragraph 5 of its Adjudication Notice provided that:
“5.1 A dispute has arisen between the Parties in relation to Sudlows' entitlement to an Extension of Time to the Completion Date for Section 2 in respect of delays up to 18 January 2021.
5.2 This Adjudication is concerned only with delays caused to the Completion Date for the Section 2 Works and only in respect of delays occurring up to 18 January.”
This was the sole subject matter of Adjudication 5.
In order to justify the EOT, Sudlows had to show that there had been a Relevant Event or Events as defined by the contract. Those relied upon here were at paragraphs 2.26.1 and 2.26.6 as follows:
“Changes and any other matters or instructions which under these Conditions are to be treated as, or as requiring, a Change” (Clause 2.26.1); and
“any impediment, prevention or default, whether by act or omission, by the Employer or any of the Employer's Persons…” (Clause 2.26.6).
While dealing with the contract, I should also refer to the definition of Relevant Matters as follows:
“Changes and any other matters or instructions which under these Conditions are to be treated as, or as requiring, a Change” (Clause 4.21.1); and
“any impediment, prevention or default, whether by act or omission, by the Employer or any of the Employer's Persons…” (Clause 4.21.5).
Paragraph 9 of Sudlows' referral in Adjudication 5 read as follows:
“ 9. ENTITLEMENT TO EXTENSION OF TIME: RELEVANT EVENTS
9.1. The causes of the further delay to the Completion of the Section 2 Works during Windows 14 to 29, as outlined above, constitute Relevant Events in accordance with clause 2.26 of the Contract.
9.2 The defective HV-B ductwork provided by Global Switch
9.2.1 The defective HV-B ductwork provided by Global Switch is a Relevant Event pursuant to clause 2.26.1 and/or clause 2.26.6, as follows.
9.2.2 Global Switch's failure to complete its enabling works in respect of the underground duct network between the LON (E) building and the LON (N) building prior to Sudlows commencing works on site and Global Switch's subsequent failure to complete such works timeously following Sudlows commencing works on site…is a Relevant Event…
9.2.3 Global Switch's failure to complete its enabling works in respect of the underground duct network between the LON (N) building and the EPC and Global Switch's subsequent instructions to Sudlows to undertake the works in place of its enabling contractor…is a Relevant Event…
9.2.4 The defective duct network provided by Global Switch, Global Switch's instructions to Sudlows to install replacement cables in the defective duct network without providing Sudlows with accurate as-built information in respect of the defective duct network provided by Global Switch and Global Switch's failure to instruct Sudlows accordingly, once Sudlows had evidenced the defective nature of Global Switch's duct network…constitutes a Relevant Event…
9.2.5 Global Switch's removal of the HV-B cable installation works from Sudlows' scope of works and its instruction to others to carry out those works in place of Sudlows and Global Switch's refusal to take responsibility for the novel and untested installation undertaken on its behalf, thus preventing Sudlows from completing its works and achieving Practical Completion…is a Relevant Event…”
All of this was heavily contested by Global and there was substantial expert and factual evidence adduced, along with many submissions.
Mr Curtis issued his decision on 17 May 2021. It ran to 82 pages. His findings included the following:
“12.29 Scope of Sudlows' EOT claim in this Adjudication.
12.30 The dispute Section 2 Works only
12.31 The relevant time window concerns the period from 3 March 2019 to 18 January 2021.
13.185 My conclusions in this section are that:
(a) Sudlows have provided sufficient technical evidence to prove their allegation that Global/JMS HV duct network was defective and not fit for purpose.
(b) Global are culpable for the resulting delays resulting from their defective duct network.
13.207 My conclusion is that:
(a) Global were entitled to take the HV-B cable installation out of Sudlows' scope of works.
(b) However Global had taken responsibility for the performance of the cable and any contractual impact on the Contract Date and potential EOT to Sudlows that might flow from it.
13.229 Taking all of the above factors into consideration, my conclusions are that:
(a) The primary cause of the damage to the HV cables was Global's defective duct network.
(b) Global were ultimately responsible for the defective duct network and hence liable for any resultant delays to the Completion Date.
13.283 Global position is:
(e) Sudlows are being unreasonable in their refusal to terminate the HV cables and to energise the works.
. 13.289 My conclusions are that under the circumstances:
(a) Sudlows were correct and entitled to refuse to connect and energise the HV supply provided by Global.
(b) Global are culpable for any delays that flow from this issue.
(c) Sudlows are therefore entitled to an EOT for any delays that may occur the to...
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Sudlows Ltd v Global Switch Estates 1 Ltd
...FROM THE HIGHT COURT BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES TECHNOLOGY AND CONSTRUCTION COURT (KBD) Mr Justice Waksman [2022] EWHC 3319 (TCC) Royal Courts of Justice Strand, London, WC2A 2LL Roger Stewart KC & George McDonald (instructed by Pinsent Masons LLP) for the Alexander N......