Wycombe Demolition Ltd v Topevent Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Coulson |
| Judgment Date | 31 July 2015 |
| Neutral Citation | [2015] EWHC 2692 (TCC) |
| Docket Number | Case No: HT-2015000253 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 31 July 2015 |
[2015] EWHC 2692 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Coulson
Case No: HT-2015000253
Mr Paul Newman ( Direct Access) for the Claimant
Ms Brenna Conroy (instructed by Endeavour Partnership LLP) for the Defendant
Hearing Date: 31 July 2015
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.
This is an adjudication enforcement dispute. In a written Decision dated 22 April 2015, the adjudicator, Mr Gard, concluded that the sum of £113,666.63, together with interest and his fees and expenses, were due from the defendant employer ("Topevent") to the claimant contractor ("Wycombe"). These monies have not been paid and Topevent now resist Wycombe's claim for summary judgment for three different reasons.
It was common ground that there was a construction contract between the parties, pursuant to which Topevent engaged Wycombe to carry out demolition works at a site at Lane End in High Wycombe. There was, however, a dispute as to when the contract was made and the relevant terms of the contract. Wycombe's case, that the contract was made on or about 8 April 2014, was rejected by the adjudicator, who instead concluded that the contract was made on or about 17 April 2014. It appears that this had an effect on the adjudicator's approach to valuation, something to which I will return later in this Judgment.
The dispute between the parties under the contract crystallised towards the end of 2014. Wycombe had issued various invoices which had not been paid. Topevent was concerned about what they said were the incomplete works. Benchmark, the claims consultants engaged by Topevent, expressly linked these two aspects of the dispute in their letter to Wycombe of 3 October 2014, sent some months before the adjudication. In that letter they said:
"The amount claimed by your client represents 100% of the demolition having been completed and quite simply it can be evidenced even today that this is not the case. The financial claim against Phase 1B is incorrect as a substantial portion of the building is clearly still standing. The Phase 2B building has had the structure above slab demolished but the majority of the works, being the ground floor slabs and foundations, still require to be excavated and crushed, as again can be evidenced even today."
Wycombe's Notice of Adjudication was dated 26 February 2015. The relevant parts of the Notice said this:
"3. THE DISPUTE
i) The Dispute concerns Payment comprising
(a) Valuation of Works and Hire Invoicing and/or damages in lieu
(b) Purported Termination and Employment of Others – damages for breach by Topevent.
(c) Default Payment
In addition Wycombe seeks payment of Interest, Statutory Compensation and Costs."
Under paragraph 4 of the Notice, entitled "The Redress Sought", specific figures were given for these various elements of the claim, giving rise to a total claim of £137,252.93. The Notice went on to claim, in the alternative, "in each case such other … amounts … as the Adjudicator shall determine."
Wycombe's Referral Notice ran to 56 closely-typed pages. It was much too long and managed to complicate what was, in essence, a simple claim. Within it, Mr Alan Wilson, the consultant acting on behalf of Wycombe, sought to advance a claim by reference to the invoices previously submitted by Wycombe, but he also endeavoured to adjust (i.e. increase) those sums by reference to a claim based on a revaluation. Those adjustments were based on the case as to the formation of the contract which the adjudicator subsequently rejected.
Topevent's Response to the Referral, and the further exchanges during the course of the adjudication, made plain that Topevent were concerned in particular about two matters:
i) The ascertainment of a fair and reasonable valuation of Wycombe's claim for varied and extra work and the sums due under the contract;
ii) The circumstances in which Wycombe left site. Topevent said Wycombe were in breach of contract and they set out a counterclaim in respect of the value of the works outstanding. This aspect of the dispute covered pages 19–26 of the Referral and incorporated a counterclaim for "some £180,000" as representing the costs of completion.
In addition, Topevent wanted the adjudicator to visit the site in order to complete his assessment of any revaluation. They "recommended" such a course in their Response. The adjudicator considered that request and responded in these terms:
"I see that Topevent is still seeking a meeting on site. I don't yet see any reason to revisit my initial conclusion that this would be either necessary or cost effective. Topevent's reasoning appears to be to evidence the simplicity of the site and outstanding work to be completed by others. Whilst I can see the nature of any outstanding works may be of some relevance to the claim, I am far from persuaded that it will be of significant help to me to decide the proper value of the works for which Wycombe claims payment."
There remained difficulties with the precise nature of Topevent's defence on the valuation issues. The adjudicator had made a number of attempts to resolve this, but no avail. On 17 April 2015, he commented:
"It seems pretty clear that Topevent's Schedule does indeed seek to reconstitute Topevent's defence, effectively by way of a claim for the costs of completion. It does not fully reflect the case previously made, nor does it provide any further supporting information for the new value(s) for which it now contends in its Schedule.
In the circumstances I therefore have some sympathy for Wycombe's 18-page Reply to the Scott Schedule plus supporting documents – as opposed to the agreed table requested.
Nevertheless if I try to do justice to the parties' submissions I think I shall require another couple of days for my Decision. I am content that I have sufficient information to reach a Decision and do not ask for anything further in the circumstances, but I do ask the parties to indulge me in an extension of time for my decision to Wednesday 22 April.
I apologise for the short notice but should be grateful for your confirmation of your agreement to this as soon as possible."
Although both parties agree to this requested extension, I should say that, generally, I consider that neither side provided the adjudicator with the assistance or co-operation which he was entitled to expect.
The relevant parts of the adjudicator's Decision were in these terms:
i) As to the meeting on site proposed by Topevent:
"Recital 12. I invited the Parties to indicate whether or not they considered either a site visit or meeting to be required. Topevent requested a meeting on site but I was not persuaded that this was either necessary or cost effective, as explained to the Parties in my letter of 16 March 2015 and my email of 10 April 2015. I therefore make this Decision on the basis of the documents only."
ii) As to the cessation of work on site:
"114. Both Parties allege unlawful termination of the Contract by the other. WDL [Wycombe] claiming £4,000 in damages for lost profit and Topevent alleging that WDL's failure to return to site will cost it in the region of £180,000. I find on the evidence before me that the Parties probably ended the Contract by mutual consent; Topevent, because of the escalating costs, and WDL because it was not being paid. In any event I find neither claim made good on the facts before me."
iii) As to the valuation of Wycombe's work:
"9. The dispute principally concerns the terms of the Contract and the proper valuation of the Works. Neither party has produced any independent expert evidence in relation to the valuation of the Works or otherwise.
10. Topevent has not apparently had specialist advice in relation to these proceedings or the presentation of its case. Much of Topevent's Response is comprised of bare allegations without supporting evidence. WDL's case is, in contrast, well supported with documentary and witness evidence and also appears to be reasonably complete …
98. During the following period of August and September 2014 Mr Barber, of Benchmark, got involved with discussions with Mrs Hawes [of Wycombe] as did, towards the end, Mr Duce [of Topevent]. Both Messrs Barber and Duce failed to comprehend the change in contract price from the original February 2013 quotation to the subsequent agreed prices and associated valuations. Nevertheless I find it clear from the above analysis that the jump in price was very largely justified and agreed in accordance with WDL's subsequent quotations as and when the necessary information became available regarding the existing asbestos on site…
117. WDL's outstanding invoices amount to £100,203.18. Whilst it is clear from the correspondence, and its Response, that Topevent accepts some payment is due, at no stage in these discussions, or indeed in these proceedings, has Topevent agreed to pay any part of the sums invoiced.
118. WDL claims £160,415.12 less the sums paid on the basis of a revaluation of the Works and a contractual analysis which assumes the Contract was made on April 2014 and all Works were comprised in one of seven different variations thereafter. I have already found against WDL in relation to the contractual anaysis.
119. It has been very difficult to reconcile the figures claimed and Topevent's responses. This is no doubt complicated by the fact that WDL's claim is based upon a contract formed on 8 April 2014.
120. Topevent bases its response on the original CSA. Whilst Topevent's analysis...
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