Ravestein B.V v Trant Engineering Limited  EWHC 11 TCC
Ravestein (“the Claimant”), a shipyard and construction company incorporated in the Netherlands, and Trant Engineering (“the Defendant”), an engineering and construction company, entered into an amended Option A NEC3 Engineering and Construction Subcontract June 2005 (with amendments June 2006) (“the Subcontract”) on 14 September 2010.
The Defendant alleged the works carried out by the Claimant were defective and sought damages, therefore referred this dispute to an adjudicator. The adjudicator decided in the Defendant’s favour and ordered the Claimant to pay damages. However, the Claimant failed to pay and the Defendant obtained a default judgment.
The Claimant subsequently referred the dispute to arbitration and both parties agreed the arbitrator should determine whether the Claimant complied with the dispute resolution provisions under the Subcontract (to serve a valid Notice of Dissatisfaction), prior to referring the dispute to the arbitrator.
The arbitrator found the Claimant failed to serve a valid Notice of Dissatisfaction (under clause W2.4(2) of the Subcontract) and therefore, the arbitrator lacked jurisdiction and the decision from the adjudication was final and binding.
The Claimant disagreed their Notice of Dissatisfaction was invalid, for failing to:
a) set out the issue in dispute and their intention to refer it to tribunal; and
b) challenge the adjudicator’s decision, instead of solely the jurisdiction.
The Claimant sought to appeal the arbitrator’s decision.
The Court dismissed the Claimant’s permission to appeal, on the basis that:
1. The requirements under W2.4(2) of the Subcontract, were not complied with and the Claimant failed to notify the Defendant of the matter in dispute and their intention to refer it to the tribunal; and
2. The Claimant only sought to challenge the adjudicator’s jurisdiction, rather than decision,
therefore, the Notice of Dissatisfaction was invalid.
For further information, please see: https://www.bailii.org/ew/cases/EWHC/TCC/2023/11.html
The Metropolitan Borough Council of Sefton v Allenbuild Limited  EWHC 1443 (TCC)
The Claimant, the Metropolitan Borough Council of Sefton appointed the Defendant, Allenbuild Limited to construct a combined leisure centre and water theme park in 2005. Practical completion occurred in June 2017.
In November 2021, the Claimant issued an adjudication against the Defendant for defective works. The adjudicator’s decision dated 17 January 2022 was in favour of the Claimant, ordering the Defendant to pay.
The Defendant issued a Notice of Dissatisfaction (NoD) regarding the adjudicator’s entire decision on 7 February 2022, whilst the Claimant sought to enforce the adjudicator’s decision by issuing a claim form on 9 February 2022.
The Defendant argued the dispute resolution procedure under the NEC2 contract was arbitration and therefore, a stay of any action to enforce the adjudicator’s decision should be granted.
Can the adjudicator’s decision be enforced, or should a stay of proceedings be granted?
The Court dismissed the Defendant’s application for a stay, and granted the Claimant’s application to enforce the adjudicator’s decision (ordering the Defendant to pay £2,204,217.13 plus interest), on the basis that:
- Section 9 of the Arbitration Act 1996 states:
- (1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter…
(4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.”
However, enforcement of the adjudicator’s decision is excluded from this and does not apply.
- The notice of dissatisfaction was unclear as to the challenges made; it did not expressly state the validity of the adjudicator’s decision was challenged and on what grounds.
For further information, please see: https://www.bailii.org/ew/cases/EWHC/TCC/2022/1443.html; https://www.legislation.gov.uk/ukpga/1996/23/section/9
Sudlows Limited v Global Switch Estates Limited  EWHC 3319 (TCC)
In this case, the contractor, Sudlows Ltd (“Sudlows“) 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 6th adjudication between these parties. Sudlow applied for summary judgment against Global for the enforcement of that adjudication decision, in the usual way. This was resisted by Global.
Further, Global brought Part 8 proceedings against Sudlows of two parts. The first, 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 made by a different adjudicator, Mr Curtis, in the previous adjudication.
The second part of Global’s Part 8 claim was to obtain enforcement of alternative findings 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.
- The contract was the JCT Design and Build 2011 form between Sudlos and Global dated 22 December 2017 for the fit out of a data hall, installation of chillers on the roof and infrastructure service connections, for the sum of £14,829,738.
- In enabling performance of the contract, a new private electricity substation was required at the site, which meant that new high voltage cables had to be laid from one area of the site to another, to be laid by Global.
- This work was due for completion in February 2018 but was delayed untilk May 2019.
- 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.
- In 2020 another set of cables was provided and pulled through, however SUdlows refused to carry out the cabling work.
- 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. The Decision made was that Sudlows was entitled to an additional extension of time to the Completion Date for the Section 2 Works of 482 days
- Adjudication 6: Sudlows sought from Global a further and final EOT from 19 January 2021 to 7 June 2021, the date of practical completion, together with further payments pursuant to Interim Payment Application 46. Global refused both. A decision was made by Mr Molley that Sudlows was entitled to a further extension of time of 23 calendar days to 30th July 2018 in respect of Section 1 and 133 calendar days to 20th April 2021 in respect of Section 2
- The first issue was whether Mr Molloy was indeed bound by the decision in Adjudication 5 in the sense that he was bound to grant the further 133 days EOT.
- If the Prior Decision Issue was resolved in favour of Global, Mr Molloy’s narrow view of his own jurisdiction would constitute a breach of natural justice such that his primary decision could not be enforced.
- Whether Global could rely on the detailed alternative findings he produced so as to lead to an enforceable award in its favour for the £209,053.01.
Application of Relevant Law
- Section 108(3) of the 1996 Act provides: “that the decision of the adjudicator is binding until the dispute is determined by legal proceedings, by arbitration . . . or by agreement.”
- In Balfour Beatty v Shepherd Construction Ltd  EWHC 2218 (TCC) Akenhead J stated: “The second adjudicator must be astute to see that he or she decides nothing to override or undermine the first adjudicator’s decision; jurisdictionally, a later adjudicator’s decision cannot override an earlier valid adjudicator’s decision. The later adjudication decision may be wholly or partly unenforceable if materially it purports to decide something which has already been effectively and validly adjudicated upon.”
- In the context of Hyder Consulting v Carillion  EWHC 1810 Edwards Stuart J stated: “an adjudicator’s conclusion on the amount of the extension of time attributable to the stated events would also be binding on the parties (until finally determined otherwise)……. an adjudicator’s decision consists of (a) the actual award (i.e. that A is to pay £X to B) and (b) any other finding in relation to the rights of the parties that forms an essential component of or basis for that award”
Reasoning of Justice Waksman
- The cases make clear that the jurisdictional question involves an analysis of what both disputes are about, and whether they are the same or substantially so.
- Mr Molloy failed to give any real weight to the fact that the decision in Adjudication 5 was as to an EOT for a prior period.
- Having said that both parties’ “arguments” had to be looked at in relation to the relevant “issue” Mr Molloy made no reference to the new material adduced before him which he considered to be significant. This was new evidence and constituted more than argument. Mr Molloy treated the decision in Adjudication 5 as in “something of a vacuum”.
- On the basis of the above it was found that there was a consequent breach of natural justice and the principal decision in Adjudication 6 cannot be enforced
For further information, please see: https://www.bailii.org/ew/cases/EWHC/TCC/2022/3319.html