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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Hitachi Zosen Inova AG v John Sisk & Son Ltd  EWHC 495 (TCC) (08 March 2019)
Cite as:  EWHC 495 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Fetter Lane, London, EC4A 1NL
B e f o r e :
| Hitachi Zosen Inova AG
|- and -
|John Sisk & Son Limited
Nicholas Collings (instructed by Eversheds Sutherland (International) LLP) for the Defendant
Hearing date: 30th January 2019
Crown Copyright ©
MR JUSTICE STUART-SMITH :
i) Pursuant to Clause 14.2, where Sisk receives an instruction or direction from Hitachi to vary the works and the instruction does not set out the value or the basis for calculating the value of the instruction then (a) Sisk is obliged to comply with Clause 30 and (b) Hitachi is required to determine the adjustment to the Contract Price "acting reasonably in the circumstances at the time". Where the instruction sets out the value or means of calculating the value of any adjustment to the Contract Price, Hitachi shall issue a Variation Order that clearly identifies the amount payable or the means by which the amount payable shall be calculated. Hitachi shall also issue a Variation Order in all other cases where Hitachi, acting reasonably, is satisfied that Sisk has properly demonstrated an entitlement to be paid pursuant to Clause 30;
ii) Where Hitachi's instruction does set not out the value or the basis for valuing a related adjustment to the Contract Price, Clause 30.1 provides that Sisk shall be entitled to all reasonable and unavoidable additional direct Cost and Expense incurred by Sisk. The level of entitlement shall be based upon the actual Cost and Expense "substantiated by contemporary records and audits of [Sisk's] books of account" or, in Hitachi's absolute discretion, any suitable relevant rates or prices used by Sisk for agreeing the Contract Price;
iii) Clause 30.4 imposes tight time-limits upon Sisk for giving notice to Hitachi of its intention to make a claim (5 days) and the provision of detailed evidence (a further 15 days) to enable Hitachi to evaluate the validity and value of the claim. Hitachi has the right to request further substantiation to be provided within a stipulated time if the evidence submitted by Sisk does not, in Hitachi's opinion, enable Hitachi adequately to ascertain the validity and value of the claim. Sisk is not entitled to any additional Cost and Expense pursuant to Clause 30 if it fails to comply with such a request from Hitachi. This is emphasised by Clause 30.6;
iv) Pursuant to Clause 37.2(c) the Purchaser's Representative may adjust any previous over or under payment in a Payment Notice subsequently issued. There is no contractual qualification or limitation of the circumstances which may lead the Purchaser's Representative to make such adjustments.
v) Clause 51 provides for reference to adjudication and the incorporation of the TECSA Rules. Rule 16 of the TECSA Rules gives the adjudicator the like power to open up and review any certificates or other things issued or made pursuant to the Contract as would an arbitrator appointed pursuant to the Contract and/or a Court.
vi) Pursuant to Clause 51.7 the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings or by agreement; but, pursuant to Clause 52.2, if an adjudicator's decision is not referred to the Court within 10 Business Days then it becomes final and binding on the parties.
The Second Adjudication
"4.1.1 A declaration as to the correct valuation of each of the items in dispute that have been referred to the adjudicator in this adjudication ..
4.1.2 An order that [Hitachi] shall pay to Sisk the sum of £3,947,187.42 plus VAT or such other sum as the adjudicator may decide (plus VAT);
i) Having summarised the submissions and timetable he said at :
"Accordingly this decision does not rehearse each and every issue raised by the Parties but it does address the Dispute referred, namely whether the items are Variations or matters for deduction, whether a time bar or other agreement applies and what the proper valuation is and sum due for the purposes of Application 6."
ii) At - he considered the basis for valuation under Clause 30.1 and continued at :
"Both Sisk and [Hitachi] at times seek to rely on unsupported costs in their respective valuations. Absent common ground in the parties' approach to valuation, I have applied contract rates and allowances where I am directed to them and am satisfied that they are sufficiently evidenced, alternatively Costs and Expense where sufficiently evidenced. If I have insufficient evidence to conclude a valuation I have had regard to any admissions made by either party and applied those to my valuation. In very many cases however the detail provided both in Application 6 and Payment Notice 6 falls short of that required by clause 30.1 and in such situations I have been unable to conclude a valuation for the purposes of Interim Application/Payment Notice 6. This is not to say that no value is due on a subsequent application, but rather, that none could be ascertained as due for this Application 6/Payment Notice 6."
iii) At , under the heading "Valuation" he wrote:
"My valuation is set out in summary terms in Appendix 1 to this decision for the Variations that Sisk identify …. . The appendices are copies of the schedules provided in Referral Section E with additional columns added for my Valuation and comments."
iv) At  under the heading "Directions", he wrote (as amended on 18 April 2016):
"I therefore Decide, Declare and Direct:
(a) The correct valuation of each of the items in dispute that have been referred to me in this adjudication, being the items in the schedule at Appendix 4 to the Notice of Adjudication is as set out in Appendices 1 and 2 to this Decision, namely [£37,003.59] for Variations ….;
(b) [Hitachi] shall pay to Sisk the sum of [£332,222.27] plus such VAT as is due at law;
v) As indicated in the main text of the decision, Appendix 1 replicated Sisk's claim as set out in its referral for Events, with the sum allowed by the adjudicator and what was described as the "Adjudicator's Decision" in two columns at the right hand side of the Appendix. The sum allowed for Event 1176 was £0.00. The Adjudicator's decision first addressed whether Sisk was instructed to accelerate its works as claimed. The adjudicator concluded that it was and "that this is a variation that requires valuation." He continued:
"Sisk provide some cost details but with limited exceptions they comprise unreferenced abstracts of daily and weekly resources or extracts from sub-contract accounts without the necessary context to satisfy the requirements of Clause 30.1.
I do not have sufficient details to value the works and hence for the purposes of Payment Notice 6 my value is £nil."
vi) There were other Events (e.g. 1332, 1357, 1372) where the substance of the adjudicator's decision was that Sisk had not satisfied the contractual requirements of proof under Clause 30.1 and therefore no sum would be or was awarded. The wording used by the adjudicator to express this conclusion was not the same in all cases, but in each case the substance of his decision was clear. In at least one case (Event 700) the adjudicator used a rather different formulation, saying that the event was "not before [him] but for the purposes of this Payment Notice 6 the value for Event 700 is nil." ;
vii) One other Event which has figured in submissions was Event 378, which was a claim for the costs of erecting safety barriers and retaining walls in the sum of £110,150.76. The adjudicator's decision was that these works constituted a variation under the contract but that "The cost details provided by Sisk do not comply with the requirements of Clause 30.1 and thus I cannot determine the correct valuation for Payment Notice 6". He awarded £0.00.
The Sixth Adjudication
"(a) decided liability for Event No. 378 – stating that "the additional Permanent car park was instructed on or about 8 October 2012" and this was "a Variation"; and
(b) did not decide quantum – stating that the "cost details provided by Sisk do not comply with the requirements of clause 30.1 and thus I cannot determine the correct valuation for Payment Notice.""
The Eighth Adjudication
"Sisk requests that the Adjudicator should make the following declarations:
10.1.1 Declare that a Variation Order should have been issued by [Hitachi] in relation to the Instruction and the Event 1176 works as a result of [the binding decision in the second adjudication] that the Instruction was a variation to the Contract or that a Variation Order should other wise be issued as decided by the Adjudicator in respect of the Event 1176 Works;"
10.1.2 Order that [Hitachi] shall pay to Sisk the sum of £994, 572.19 plus VAT, or such other sum as the Adjudicator shall determine plus VAT in respect of Sisk's entitlement in relation to the Instruction within 7 days of the date of the Adjudicator's Decision.
"… In the Second Adjudication I decided that Event 1176 was a Variation that required valuation. Thus I cannot adjudicate now on whether Event 1176 was or was not a Variation as that has been decided.
In addition I decided that for the purposes of Application 6 that Sisk had not complied with the provisions of clause 30.1 and stated that "I do not have sufficient details to value the works and hence for the purposes of Payment Notice 6 my value is £nil." The fact that "£nil" was entered onto my spreadsheet does not alter the meaning of the words used in the body of my Decision. I could not conclude a value for Event 1176 in that Notice and as a fact I did not decide a value for event 1176."
i) At the hearing of the present issue Mr Walker QC for Hitachi confirmed that the terms of [2.30] were not in dispute. [2.30] says:
"Mr Pontin's decision in respect of Event 1176 is therefore clear:
2.30.1 The instruction of 29 August 2014 … is a variation in accordance with the Contract and the works that resulted as a consequence of the Instruction (the Event 1176 Works) require valuation;
2.30.2 Given the instruction was a variation, [Hitachi] is obliged to issue a Variation Order in accordance with the provisions of the Contract.
2.30.3 The substantiation provided with Sisk's Referral to adjudication in the Second Adjudication was insufficient to satisfy the requirements of clause 30.1 of the Contract and as a result, at the point of giving his decision, Mr Pontin could not ascertain the value of the variation."
ii) In Section 2 of the Referral Notice Sisk explained that the 3 November 2017 Application provided a level of substantiation that goes far beyond what had been provided before and explained the approach that has now been adopted, notwithstanding that there are similarities between constituent figures that go to make up the amount now claimed and the constituent figures that went to make up the equivalent amounts claimed in the Second Adjudication. Hitachi's solicitor has demonstrated that some of the evidence is common to the two adjudications and that some of the new evidence would have been available to Sisk at the time of the second adjudication.
"249. My decision was that the Event 1176 Works I [sic] constituted a Variation that require a valuation, that is, I decided the liability issue as between the parties.
250. I cannot and do not reconsider that decision here, but I accept that in reaching a decision as to the valuation of the Event 1176 Works, such decision having not been made in the Second Adjudication, I do need to consider whether the requirements of the Contract have been met as regards that valuation."
"Having decided in the Second Adjudication that Event 1176 is a Variation that requires valuation and decided here that the valuation is £825,703.17 plus interest, it follows that a Variation Order should be issued to that effect. In any event a Variation Order for the Event 1176 works should have been issued following my Second Adjudication given that I had there decided on liability and the basis of payment."
"I therefore Decide, Declare and Direct
(a) A variation Order should have been issued by [Hitachi] in relation to the Instruction and the Event 1176 Works as a result of my binding Decision that the Instruction was a variation to the Contract and in any event a Variation Order should be issued now in respect of the Event 1176 Works;
(b) [Hitachi] shall pay to Sisk within 7 days of the date of this Decision the sum of £825,703.17 plus such VAT as is due at law in respect of Sisk's entitlement in relation to the Instruction.
(c) [Hitachi] shall pay to Sisk within 7 days of the date of this Decision £34,035.33 in relation to interest up to the date of the Referral and continuing until the date of this Decision at a daily rate of £192.29
Did the adjudicator have jurisdiction?
"Appendix C is a far cry from the two application letters dated 2 September 2004 and 22 April 2005. It is perhaps regrettable that Appendix C was not advanced in the first adjudication. Appendix C identifies a number of causes of delay which do not feature in the two application letters. Further, Appendix C appears to be a structured and logical document, which sets out to demonstrate what the critical path was and how individual events did or did not impact upon the final date for completion. Whether, at the end of the day, the submissions in Appendix C will prevail, I do not know. This will be a matter for the adjudicator or, possibly, the arbitrator to decide. I am, however, quite satisfied that Vascroft's alleged entitlement to an extension of time as set out in Appendix C is substantially different from the claims for extension of time which were advanced, considered and rejected in the first adjudication."
"31. Section 108(3) of the 1996 Act and para 23 of the Scheme provide for the temporary binding finality of an adjudicator's decision. More than one adjudication is permissible, provided a second adjudicator is not asked to decide again that which the first adjudicator has already decided. Indeed para 9(2) of the Scheme obliges an adjudicator to resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication and a decision has been taken in that adjudication.
32. So the question in each case is, what did the first adjudicator decide? The first source of the answer to that question will be the actual decision of the first adjudicator. In the present appeal, Mr Holt did not even take us to the first adjudicator's decision, although he was invited more than once by the court to do so. He was conscious, no doubt, that it would show, as it does, that the decision was limited to the grounds for extension of time in the two letters.
33. The scope of an adjudicator's decision will, of course, normally be defined by the scope of the dispute that was referred for adjudication. This is the plain expectation to be derived from section 108 of the 1996 Act and paras 9(2) and 23 of the Scheme. That is also the plain expectation of para 9(4) of the Scheme, which refers to a dispute which varies significantly from the dispute referred to the adjudicator in the referral notice and which for that reason he is not competent to decide. There may of course be some flexibility, in that the scope of a dispute referred for adjudication might by agreement be varied in the course of the adjudication."
"47. Whether dispute A is substantially the same as dispute B is a question of fact and degree. If the contractor identifies the same Relevant Event in successive applications for extensions of time, but gives different particulars of its expected effects, the differences may or may not be sufficient to lead to the conclusion that the two disputes are not substantially the same. All the more so if the particulars of expected effects are the same, but the evidence by which the contractor seeks to prove them is different.
48. Where the only difference between disputes arising from the rejection of two successive applications for an extension of time is that the later application makes good shortcomings of the earlier application, an adjudicator will usually have little difficulty in deciding that the two disputes are substantially the same.
49. In the present case, I am in no doubt that the judge reached the right conclusion. The first disputed claim which was the subject of the first adjudication was different from the second disputed claim. The written notices which formed the basis of the second claim identified Relevant Events which were substantially more extensive than those which formed the basis of the first claim. The particulars of expected effects were very different too. There will be some borderline cases where it is a matter of judgment whether the two claims are substantially the same and where there may be room for more than one view. In my view this is not a borderline case."
"57. It is quite clear from the authorities that one does not look at the dispute or disputes referred to the first adjudicator in isolation. One must also look at what the first adjudicator actually decided. Ultimately it is what the first adjudicator decided, which determines how much or how little remains available for consideration by the second adjudicator."
Application of principles to the present case
What did the adjudicator in the second adjudication decide about Event 1176?
i) At  of the decision the adjudicator refined and qualified what he had decided by saying that the decision addressed "whether the items are Variations or matters for deduction, … and what the proper valuation is and sum due for the purposes of Application 6";
ii) At  he identified that in many cases the substantiating detail provided fell short of that required by clause 30.1 and said that "in such circumstances I have been unable to conclude a valuation for the purposes of Interim Application/Payment Notice 6. This is not to say that no value is due on a subsequent application, but rather, that none could be ascertained as due for this Application 6/Payment Notice 6." This clarifies that in many cases his decision was that there was a want of substantiating detail and that in such cases he had not concluded a valuation for the purposes of Interim Application/Payment Notice 6. In other words, he was not purporting to provide a valuation or any decision save that there was an absence of substantiating detail within the materials submitted to him. He expressly took a limited approach to the question referred to him: he did not purport to decide whether there was or was not any value in the Events where there was inadequate substantiation. He expressly left that question open and to be decided (if appropriate) at a later date on a subsequent application, which is an indication of his view of the limitations on what he was deciding but is not determinative of any issue that now falls to be decided;
iii) In Appendix 1 under "Adjudicator's Decision" for Event 1176 he decided that Event 1176 was a variation that required valuation; but he put it in the category of cases where the evidence provided was insufficient to satisfy the requirements of Clause 30.1 for substantiating value. He then said expressly that he had insufficient details to value the works and "hence for the purposes of Payment Notice 6 my value is £nil."
i) Decided that Event 1176 was a variation that required valuation;
ii) For want of evidence decided that no sum was payable to Sisk pursuant to Payment Application 6 for Event 1176; but
iii) Did not decide the valuation of Event 1176 for any other purposes than in the context of the claim pursuant to Payment Application 6.
Is the dispute that was referred to the adjudicator in the eighth adjudication the same or substantially the same as the dispute decided by the adjudicator in the second adjudication about Event 1176?
14.1 The Contractor shall not alter, add to or omit any part of or item of the Works, except as directed in Writing by the Purchaser, but the Purchaser shall have further power from time to time up to taking over by the Employer under the Main Contract of any part of the Plant including the Works hereunder, by notice in Writing to direct the Contractor to alter, add to or reduce or omit in any manner any part of or item of the Works, …, and the Contractor shall as expediently as is possible and subject to the provisions of this Clause 14, comply with the same and be bound by these Conditions, so far as applicable as though such alterations, additions or omissions were stated in the Contract.
14.2 In any case in which the Contractor has received an instruction or direction from the Purchaser under this Clause, and save to the extent that any such instruction or direction sets out the value of or the basis for calculating the value of a related adjustment to the Contract Price, …, or an event or circumstance contemplated by Sub-clause 301.1 below arises, the Contractor shall strictly adhere to the requirements set out in this Clause and Clause 30 below. Where not agreed by the parties, the provisions of Clause 30 below shall strictly apply and any such adjustment to the Contract Price set out in the instruction or direction shall be determined by the Purchaser, acting reasonably in the circumstances at the time, and shall include a fair and reasonable element for profit save where any such direction results from a claim of Cost and Expense. When the Purchaser has set out in the said instruction or direction the value of means of calculating the value of any adjustment to the Contract Price and in all other cases where the Purchaser, acting reasonably, is satisfied that the Contractor has properly demonstrated an entitlement pursuant to Clause 30 below, the Purchaser shall issue a variation order ("Variation Order") to the Contractor pursuant to his clause. Without prejudice to the provisions of Sub-Clause 14.3 below, each Variation Order shall clearly identify the amount payable (or as the case may be, the means by which that amount is to be calculated) and the date, event or milestone upon which the Contractor is entitled to make an application for payment pursuant to Clause 37 below and if applicable the relevant extension of time or other alteration to any date in the Approved Programme. …
30. ADDITIONAL COST AND EXPENSE AND DELAYS INCURRED BY THE CONTRACTOR
30.1 Subject always to the provisions of this Clause 30, all reasonable and unavoidable additional direct Cost and Expense incurred by the Contractor which is not in consequence of some default or omission on the part of the Contractor, or which is not a Cost and Expense for which the Contractor is responsible under the Contract, or as the case may be, all reasonable savings of cost, Expense and time made by the Contractor and in each case by reason of;
(a) the delay, acceleration (save where the Contractor is suffering culpable delay), suspension, addition to or omission of any of the Works or any part thereof by the instruction or direction of the Purchaser, or
(b) the specific alteration of the order of the Works by the instruction or direction of the Purchaser which is not as a result of the Contractor suffering culpable delay, or
(c) any instruction or direction issued by the Purchaser to the Contractor pursuant to Sub-Clause 14.1 above to the extent not covered under paragraphs (a) and (b) above, or…
shall be the subject of a Variation Order pursuant to and subject to compliance by the Contractor with the provisions of Clause 14 above. For the avoidance of doubt the provisions of Clause 30 shall not apply to any instruction or direction issue by the Purchaser pursuant to Clause 14 above to the extent that any such instruction or direction sets out the agreed value of or the agreed basis for calculating the value of a related adjustment to the Contract Price. The level of entitlement to payment in a Variation Order for reasonable and unavoidable additional Cost and Expense incurred by the Contractor as a direct result of the circumstances set out in paragraphs (a) to (h) above shall be based on the actual Cost and Expense incurred by the Contractor substantiated by contemporary records and audits of the Contractor's books of account pursuant to Clause 30A below, or in the Purchaser's absolute discretion, any suitable relevant rates or prices used by the Contractor for agreeing the Contract Price. However, where an item in any schedule of unit rates as may be set out in Schedule 7 (Payment of the Contract Price) is deemed by the Purchaser in his absolute discretion to be directly applicable that item shall be used. Notwithstanding the foregoing the Contract Price shall be deemed to have included all Cost and Expense an allowance for risk on the part of the Contractor associated with the Contract and in particular with the flexible approach to the detailed execution by the Contractor of the Works with the Programme and as referred to in Clauses 10.4 and 19.3 above. The entitlement or otherwise of the Contractor to relief hereunder shall be subject to and interpreted in accordance with this provision.
30.2 The Contractor shall mitigate any additional Cost and Expense incurred by him pursuant to Clause 30.1 above and the extent to which he has done so, including but not limited to compliance with Clauses 10.4 and 10.5 above, shall be taken into account in assessing the amount to be determined by the Purchaser under the applicable Variation Order as an adjustment to the Contract Price.
30.4 No Claim for additional Cost and Expense and/or relief and/or delay shall be made under this Clause unless the Contractor has, within five (5) Days after either the commencement of the event first giving rise to the claim or after the date the Contractor acting as a prudent contractor should first have known of the commencement of the said event, whichever be the later, given notice in writing to the Purchaser of his intention to make a claim and which notice shall with reference to Clause 30.1 above specify the ground upon which the Contractor considers it has an entitlement to claim together with such details thereof as it is reasonable in the circumstances for the Contractor to be able to furnish with the said notice. That notice shall be supported within a further fifteen (15) Days after the expiry of the said five (5) Days by such reasonable detailed evidence as will enable the Purchaser to adequately ascertain the validity and value of the said claim. Such evidence shall include but not be limited to full, reasonable detailed and supported contemporary records of relevant activities, together with such additional records as the Purchaser's Representative may reasonably direct, and all such Contractor's and Sub-Contractor's records shall be open to inspection by the Purchaser's Representative, Costs and Expense and time programmes. The Purchaser shall have the right to request further substantiations if the evidence as aforesaid does not, in the Purchaser's opinion, meet the aforementioned requirements and to stipulate the time by which such further substantiation shall be submitted by the Contractor. When the nature of the said event is continuous the Contractor shall provide to the Purchaser on a monthly basis, or such intervals as the Purchaser may stipulate, updates of the required detailed evidence. The Contractor shall not be entitled to any additional Cost and Expense pursuant to this Clause unless he shall have complied strictly with the requirements of this Clause and, in default of strict compliance, the Contractor shall be deemed to have waived all rights, claims and damages under this Clause 30 or to which he might otherwise have become entitled pursuant to the Contract whether as a result of any breach of contract by the Purchaser or otherwise. …
30.6 The following shall not give rise to any entitlement to relief under this Clause 30 ...
(e) The Contractor's failure to give notice, and follow this with the adequate supporting evidence and records, within the time constraints and to the level of detail so described in Sub-Clause 30.4 above.
30.7 Without prejudice to the generality of the provisions of this Clause, any amendment to the Contract Price and/or the Programme pursuant to Clause 14 above and this Clause 30 shall conclusively constitute the sole and entire remedy and entitlement to additional payment and/or time in respect of the event to which it relates and shall conclusively be deemed to cover all consequences arising out of or in relation to the said event as defined in Sub-Clause 30.1 above, whether caused by a breach of contract on the part of the Purchaser or otherwise.
37.1 (a) The Purchaser shall pay the Contract Price to the Contractor in the manner and at the times set forth in Schedule 7 (Payment of Contract Price).
(b) Within five (5) Days after the payment due date in respect of an Interim Payment Application the Purchaser's Representative shall issue a notice (the "Payment Notice") in which he shall state the amount due from the Purchaser to the Contractor at the payment due date in respect of the Interim Payment Application and the basis on which that sum has been calculated, taking into account:
(i) any deductions pursuant to the provisions of the Contract whereby the Purchaser is entitled to exercise any right under this Contract of withholding and/or deduction from monies due or to become due to the Contractor against any amount due under the Payment Notice;
(ii) any amount to the subject of a previous Payment Notice; and
(iii) any amount which exceeds the corresponding cumulative amount specified in the Milestone Payment Schedule.
(c) The Purchaser's Representative may adjust any previous over or under payment in a Payment Notice subsequently issued.
(f) Claims in respect of Variations shall be made by way of Interim Payment Applications to the Purchaser's Representative if and when such applications arise or as otherwise agreed between the Parties and shall not form part of the Contractor's Interim Payment Application in respect of Milestones. … .
37.4 (a) The Contractor shall make the Final Payment Application to the Purchaser's Representative for the final payment no earlier than thirty (30) Days after reaching the last Milestone according to Milestone Payment Schedule or at such later date as may be agreed by the parties, both acting reasonably.
(b) The Final Payment Application shall be accompanied by a final account prepared by the Contractor in relation to the Works. The final account shall give full details of previous payments in relation to the Works under the Contract and other sums as additions as well as deductions made by the Purchaser's Representative together with a detailed analysis of all claims to which the Contractor considers himself entitled under the Contract.
37.5 The Final Payment Notice shall be issued by the Purchaser's Representatives within five (5) Days after the payment due date in respect of the Final Payment Application and shall state the information referred to in Sub-Clause 37.2(b) above. The total amount payable to the Contractor under the Contract in respect of the Works having any addition to or deduction from the Contract Price provided for in these Conditions and claims in respect thereof made by the Contractor, the total amounts already paid, and the balance payable by either party.
37.6 (a) The payment due date in respect of the Final Payment Application shall be ninety (90) Days after the date of receipt by the Purchaser's Representative of the Final Payment Application which the Contractor was entitled to make and which complies with all the requirements of Sub-Clause 37.4 above. For the purposes of this Sub-Clause, time shall not start to run until the Contractor has provided to the Purchaser's Representative all information in amplification of the final account that the Purchaser's Representative may reasonably require….
51.1 Notwithstanding any provision in this Contract for a dispute to be referred to the courts in accordance with Clause 51, either party shall have the right to refer any dispute or difference … as to a matter under or in connection with the Contract to adjudication … . The ensuing adjudication shall be conducted in accordance with the edition of the 'Adjudication Rules' (the 'Rules') published by the Technology and Construction Court Solicitors Association current at the time of service of the Notice of Adjudication. …
51.7 The decision of the adjudicator shall be binding until the dispute is finally determined by legal proceedings or by agreement.
52.1 … The parties agree that the court may open up, review and revise any option, decision (including any decision made by Adjudication), certificate, Payment Notice, account, requirement or notice given pursuant to this Contract and determine all matters in dispute which shall be submitted to in the same manner as if no such opinion, decision, certificate, Payment Notice, account, requirement or notice had been given.
52.2 In any case where such a dispute is referred to adjudication under Clause 51 above either Party shall be at liberty to refer to the adjudicator's decision to the Courts under this Clause 52 within ten (10) Business Days after the date of the Adjudicator's decision and in the absence of such a reference to the Courts within the said period of ten (10) Business Days the Adjudicator's decision shall be final and binding on the Parties. ...