Willmott Dixon Housing Ltd (formerly Inspace Partnerships Ltd) v Newlon Housing Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ramsey |
| Judgment Date | 09 April 2013 |
| Neutral Citation | [2013] EWHC 798 (TCC) |
| Docket Number | Case No: HT-12-413 |
| Date | 09 April 2013 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2013] EWHC 798 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Ramsey
Case No: HT-12-413
Jonathan Lee (instructed by Wendy McWilliams Willmott Dixon Holdings Limited) for the Claimant
Alex Hickey (instructed by Trowers & Hamlins) for the Defendant
Hearing dates: 17 January 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application under CPR 24 for summary judgment by the Claimant ("Willmott Dixon") against the defendant ("Newlon") arising out of two adjudication decisions.
Background
Newlon employed Willmott Dixon as the contractor for part of a development known as Hale Village, Tottenham Hale, London. This mixed-use development included residential units, offices, retail units, student accommodation and leisure facilities. Willmott Dixon was the contractor for the part of this development known as Block SE.
Willmott Dixon was employed by Newlon under a contract dated 30 March 2007 ("the Contract") which was in the ACA Standard Form of Contract for Project Partnering (PPC 2000), as amended, incorporating Partnering Terms and a Commencement Agreement made in January 2010.
The Contract contained provisions as to adjudication and other matters as follows:
(1) Clause 3.1 contained a provision for the cooperative exchange of information in the following terms: "The Partnering Team members shall work together and individually, in accordance with the Partnering Documents, to achieve transparent and cooperative exchange of information in all matters relating to the Project and to organise and integrate their activities as a collaborative team."
(2) Clause 27 dealt with various dispute resolution procedures and Clause 27.5 noted that those procedures were "without prejudice to the rights of any Partnering Team member involved in a difference or dispute to refer it to adjudication, and any such reference shall be in accordance with the procedure referred to in Part 2 of Appendix 5."
(3) Appendix 5 part 2 provided as follows:
"1. The term the "Adjudicator" shall mean the individual named in the Project Partnering Agreement or (if no individual is so named) such individual as shall be appointed from time to time in accordance with the edition of the Model Adjudication Procedure published by the Construction Industry Council current at the date of the relevant notice of adjudication (the "Model Adjudication Procedure").
2. Any Partnering Team member has the right to refer a difference or dispute for adjudication by giving notice at any time of its intention to do so. The notice shall be given and the adjudication shall be conducted under the Model Adjudication Procedure.
3. For the purposes of the Model Adjudication Procedure, the term "dispute" shall have the same meaning as "difference or dispute" in the Partnering Terms.
In these proceedings it is common ground that the reference in Clause 1 of Appendix 5 Part 2 to the edition of the Model Adjudication Procedure published by the Construction Industry Council ("CIC Rules") "current at the date of the relevant notice of adjudication" means that the applicable rules are those in the Fifth Edition. Whilst those are stated to be relevant to the Housing Grants, Construction and Regeneration Act 1996 as amended by the Local Democracy, Economic Development and Construction Act 2009, they do not differ in material respects relevant to these proceedings from the Fourth Edition which had been published in March 2007.
The relevant provisions of the CIC rules are as follows:
(1) Clause 1 provides: "The object of adjudication is to reach a fair, rapid and inexpensive decision upon a dispute arising under the Contract and this procedure shall be interpreted accordingly."
(2) Clause 8 deals with the Notice of adjudication as follows: "Either Party may give notice at any time of its intention to refer a dispute arising under the Contract to adjudication by giving a written Notice to the other Party. The Notice shall include a brief statement of the issues or issues which it is desired to refer and the redress sought."
(3) Clause 10 deals with requests to the Construction Industry Council ("CIC") for the nomination of an adjudicator and Clause 13 provides as follows: "If a Party objects to the appointment of a particular person as adjudicator, that objection shall not invalidate the Adjudicator's appointment or any decision he may reach."
(4) Clause 14 provides: "The referring Party shall send to the Adjudicator within 7 days of the giving of the Notice (or as soon thereafter as the Adjudicator is appointed), and at the same time copy to the other Party, a statement of its case including a copy of the Notice, the Contract, details of the circumstances giving rise to the dispute, the reasons why it is entitled to the redress sought, and the evidence upon which it relies."
(5) Clause 15 provides: "The date of referral shall be the date on which the Adjudicator receives the statement of case and he shall, as soon as reasonably practicable, notify the date to the Parties in writing."
(6) Clause 16 provides: "The Adjudicator shall reach his decision within 28 days of the date of referral, or such longer period as is agreed by the Parties after the dispute has been referred. The Adjudicator may extend the period of 28 days by up to 14 days with the consent of the referring Party."
(7) Clause 34 provides: "Unless the Parties agree, the Adjudicator shall not be appointed arbitrator in any subsequent arbitration between the Parties under the Contract. No party may call the Adjudicator as a witness in any legal proceedings or arbitration concerning the subject matter of the adjudication."
(8) Clause 35 provides: "The Adjudicator is appointed to determine the dispute or disputes between the Parties and his decision may not be relied upon by third parties, to whom he shall owe no duty of care."
Prior to the adjudications giving rise to these proceedings there had been a previous adjudication decision on 22 August 2012 which determined that Willmott Dixon were entitled to be paid under the Contract for certain basement works. Willmott Dixon applied for payment for those works but no payment was made by Newlon.
On 9 October 2012 Willmott Dixon served a notice of intention to refer to adjudication a dispute as to the sums to which it was entitled for those basement works ("the Basement Works Dispute").
Also on 9 October 2012 Willmott Dixon served on Newlon a further notice of intention to refer to adjudication a dispute as to its entitlement to be paid sums withheld by Newlon on account of liquidated damages ("the LAD dispute").
Willmott Dixon applied to the CIC for the appointment of adjudicators, making separate applications and paying separate fees in relation to each of the disputes. The CIC appointed the same adjudicator, Mr John Riches, in relation to each of the two disputes.
On 11 October 2012 Willmott Dixon sent two letters to the Adjudicator, one in respect of each dispute, in the following terms:
"This letter is to advise you that with the hard copy of this letter I will be sending the Referral together with a file containing a bundle of copy documents. This letter and enclosures are being sent for guaranteed delivery to you tomorrow and a copy of this letter and enclosures are likewise being sent in the same manner to Trowers & Hamlins."
In these proceedings Newlon raises question of whether or not the Adjudicator received a document entitled "Referral" with each of the letters sent by Willmott Dixon on 11 October 2012. Newlon says that it did not itself receive those documents.
On 14 October 2012 the Adjudicator wrote two letters to the parties in identical terms, one in respect of each adjudication. Under "Procedure" he said as follows:
"The parties are aware that there are two Adjudications. All communications shall be clearly marked to show which Adjudication is being referred to.
The parties might consider if they wish, for convenience to consolidate the two Adjudications. Until such time as I am instructed by the parties to consolidate the two Adjudications I am working on the basis of running two timetables in parallel and producing two separate Decisions.
I confirm receipt of the Referral on 12 October 2012. That makes day one of this Adjudication 13 October 2012."
On 19 October 2012 Newlon submitted a Response in relation to each of the adjudications. In each case they referred to a Referral served by Willmott Dixon which was dated 27 July 2012 and which formed part of the enclosures sent with the letter of 11 October 2012. Newlon did not refer to a Referral dated 11 October 2012 which Willmott Dixon said was also enclosed with that letter.
Willmott Dixon said that, in each case, they sent to the Adjudicator and to Newlon a covering letter, a Referral document dated 11 October 2012 and a file which contained documentation including a previous Referral dated 27 July 2012 which had led to an adjudication decision on 22 August 2012. Newlon raises an issue as to whether or not the Adjudicator received the Referral document dated 11 October 2012 attached to each covering letter and says that it did not receive a copy at the time when the covering letter and the file were sent to the Adjudicator.
In each Response Newlon raise an objection on the basis that Willmott Dixon had not sent a Referral document to the Adjudicator which complied with Rule 14 of the CIC Rules.
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