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England and Wales High Court (Technology and Construction Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Orange EBS Ltd. v ABB Ltd. [2003] EWHC 1187 (TCC) (22 May 2003) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2003/1187.html Cite as: [2003] BLR 323, [2003] EWHC 1187 (TCC), (2004) 20 Const LJ 30 |
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
33 BULL STREET BIRMINGHAM B4 6DS |
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B e f o r e :
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Claimant |
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and |
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Defendant |
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Mr Simon Hughes of Counsel (instructed by Wragge & Co) for the Defendant
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VERSION
OF JUDGMENT: 22 MAY 2003
BEFORE HER HONOUR JUDGE FRANCES KIRKHAM
HTML VERSION
OF JUDGMENT
Crown Copyright ©
Background
"Due to the nature and extent of the defects in your work and your abandonment of the site, the employer is unwilling to readmit you to site. In the circumstances the sub contract is terminated.
Please provide us with a final account for work done adjusted to take account of defective and incomplete work. In due course we will let you have full details of the cost of remedial works and details of any other losses suffered byABB.
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For the time being the position is that there are no further sums due to yourself in respect of the contract."
"Our clients are actively looking at your client's final account but will not have completed that exercise until 20 January 2003. As you are aware the construction industry closes completely for two weeks over the Christmas period, which elongates, slightly, the time our clients will require to assess your client's final account. In any event our client will respond substantively to your client's final account by the above date. Our clients are willing to agree that should the parties have not reached agreement within seven days of the date of our client's substantive response to your client's final account that we will agree to [the first adjudicator] being appointed adjudicator to determine the dispute that will then exist between our respective clients. We put you on notice that should you proceed with issuing a further notice of adjudication we will dispute jurisdiction on the grounds that there is no extant dispute between the parties at the present time."
"The dispute arose on or about 5 June 2002 [sic] and concerns the sum due toOrange
in respect of their final account and/or damages under the sub contact as a result of the wrongful termination of
Orange's
sub contract by
ABB
including:
3.1Valuation
of the
Orange
works;
3.2 The amount of damages and/or alternatively direct loss and expense incurred byOrange
as a result of delay and disruption to its works;
3.3 The repayment of monies improperly withheld byABB
from those otherwise due to
Orange;
3.4 Dismissal of monies claimed byABB
against monies otherwise due to
Orange;
3.5 Interest …"
Orange
claimed the same redress as in their notice to adjudicate dated 2 December 2002 (see paragraph 9 above).
The relevant law
"4. In myview,
the law is satisfactorily stated by His Honour Judge Lloyd QC in his unreported decision of Sindall -
v-
Solland dated June 2001, in which he said this:
"For there to be a dispute for the purposes of exercising the statutory right to adjudication it must be clear that a point has emerged from the process of discussion or negotiation that has ended and that there is something which needs to be decided."
As it seems to me, that is a statement of principle which is easily understood and is not in conflict with the approach of the Court of Appeal in Halki. I would have beenvery
surprised if it was. It has to be borne in mind that, as observed in Halki "dispute" is an ordinary English word which should be given its ordinary English meaning. This means that there will be many types of situation which can be said to amount to a dispute. Each case will have to be determined on its own facts and attempts to provide an exhaustive definition of "dispute" by reference to a number of specified criteria are, in my
view,
best avoided. I therefore reject the suggestion that the word "dispute" should be given some form of specialised meaning for the purposes of adjudication.
5. In myview,
Judge Lloyd's definition is simple and easily applied. It accords with the ordinary meaning of the English word "dispute", and has much to commend it. It is not in conflict with Halki. I propose to approach this case on that basis. I do not believe, in so doing, that I am in any way approaching this matter in a fashion inconsistent with the Court of Appeal's decision as to what constitutes a "dispute" in the case of Halki, and I did not understand Mr Jinadu to suggest otherwise."
Issues
Conclusion
"2(2) The provisions of the Primary sub contract [ie the Bovis:ABB
contract] relating to payment to or allowance by [Bovis] of direct loss and/or expense caused by the disturbance of the regular progress shall apply, mutatis mutandis as between [
ABB]
and [
Orange]
as if they were respectively the Main contractor and the Primary sub contractor except as is otherwise expressly provided in this Secondary sub contract.
4 (2) (ii) If in accordance with the terms of this Secondary sub contract [ie theABB
:
Orange
sub contract] the Secondary sub contractor is entitled to any amount thereunder including any amount in respect of
variations,
fluctuations or loss and/or expense or damage, then to the extent that any such amounts are subject to an assessment,
valuation
or ascertainment under the Primary sub contract, such amount shall become due seven days after it becomes due under the Primary sub contract."
"21.8 ….Not later than 4 months after practical completion of the Sub Contract Works the sub Contractor shall send to the Contractor all document s necessary for the purpose of computing the Ascertained final Sub Contract Sum."
"21.9.2 The Final Payment shall be due not later than 7 days after the date of issue of the Final Certificate issued by the Architect under clause 30.8 of the main Contract Conditions and within 5 days of the date on which the Final Payment becomes due the Contractor shall by notice in writing …notify the Sub contractor of the amount of the Final Payment to be made to the Sub Contractor…"