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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Roe Brickwork Ltd v Wates Construction Ltd [2013] EWHC 3417 (TCC) (11 November 2013) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2013/3417.html Cite as: [2013] EWHC 3417 (TCC) |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Rolls Building 7 Rolls Buildings, London EC4A 1NL |
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B e f o r e :
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Roe Brickwork Limited |
Claimant |
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- and - |
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Defendant |
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Miss Jessica Stephens (instructed by Mayer Brown LLP) for the Defendant
Hearing dates: 25th October 2013
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Crown Copyright ©
Mr. Justice Edwards-Stuart:
Introduction
i) Additional preliminaries and loss of overheads and profit ("OHP") in the sums of approximately £52,000 and £121,000, respectively.
ii) Loss of productivity, broken down by various causes. The total sum claimed under this head was about £465,000.
iii) Additional supervision and management in the sum of about £122,000.
"The sum of £381,459.75 + interest is awarded above. The actual net due shall reflect the amounts already paid under each head of award above. It is payable within 10-days of today. The parties will know what is already paid under each head."
In addition, he awarded interest at 3.5% from 31 January 2013.
The proceedings in the adjudication
"RBL are entitled to an extension of time, primarily due to the non availability of work upon issue of notices to commence and due to insufficient bricks on site, and RBL are entitled to additional preliminaries and overhead recovery.
…
As a result of items 3.1 to 3.7 RBL were unable to proceed with agreed orders with WCL for works on other sites, and were unable to commit to works for other contractors, and are therefore entitled to loss of overheads and profit on those works."
"That WCL pay forthwith any amount outstanding, plus interest, plus costs, plus continual interest until such sums are paid, plus the Adjudicator's fees and expenses in the matter, plus any other sums the Adjudicator sees fit."
Identical wording was used in the Referral Notice.
Sub Contract Sum Divided by Contract Weeks |
£1,541,429.08 73 |
Value per week | £21,115.47 |
OHP @ 22.5% No of Weeks due as Extension of Time |
£4,750.98 25.60 |
Entitlement to recovery of OHP on formula basis | £121,625.09 |
"Therefore, there are no grounds for awarding further head office overheads, nor grounds for lost profits, it would be double recovery. Bear in mind however that the additional costs via disruption and prolonged supervision, surveyors, directors, plant, and small tools etc. is all compensated elsewhere in this Award. It does however appear correct to add 13% OH&P to the allowed for costs."
Prelims | £11,293.00 |
8,400 hours loss of productivity | £182,700.00 |
1,800 hours directors and surveyor | £54,000.00 |
2,400 hours supervision | £53,379.00 |
Forklift driver | £28,119.00 |
Plant | £8,084.00 |
£337,575.00 | |
+ OH & P @ 13% | £43,884.75 |
£381,559.75 |
"To the extent that a Valuation relates to the execution of work which cannot properly be valued by measurement, the Valuation shall, if applicable, be based on the rates and procedures set out below:
Rates
Valuation shall be at the all inclusive daywork rates set out below or included elsewhere in the Sub-Contract Documents.
Foreman [Daywork] | £26.50 per hour |
Bricklayer [Daywork] | £22.50 per hour |
Labourer [Daywork] | £19.50 per hour" |
The law
"… in determining whether an Adjudicator has acted impartially, it is very necessary to bear in mind that the point or issue which is to be brought to the attention of the parties must be one [of] which is either decisive or of considerable potential importance to the outcome and not peripheral or irrelevant. It is now clear that the construction industry regards adjudication not simply as a staging post towards the final resolution of the dispute in arbitration or litigation but as having in itself considerable weight and impact that in practice goes beyond the legal requirement that the decision has for the time being to be observed. Lack of impartiality or of fairness in adjudication must be considered in that light. It has become all the more necessary that, within the rough nature of the process, decisions are still made in a basically fair manner so that the system itself continues to enjoy the confidence it now has apparently earned. The provisional nature of the decision also justifies ignoring non-material breaches."
"It is only if the adjudicator goes off on a frolic of his own, that is wishing to decide the case on a factual or legal basis which has not been argued or put forward by the other side, without giving the parties an opportunity to comment or, where relevant put in further evidence, that the type of breach of the rules of natural justice with which the case of Balfour Beatty Construction Co Ltd v The London Borough of Lambeth was concerned comes into play. It follows that, if either party has argued a particular point, and the other party does not come back on the point, there is no breach of the rules of natural justice."
The submissions of the parties
"Whilst there was a dispute as to whether or not the Claimant was entitled to recover loss and/or expense on the basis of the contracted Daywork rates, there was no dispute and the parties agreed (contractually and within the adjudication) that the contracted Daywork rates were 'all inclusive' and, particularly, that they were inclusive of overhead and profit. The Claimant did not suggest that it should recover Dayworks rate plus overhead and profit on its disruption/loss of productivity claim."
In the light of this, she submitted that the adjudicator had the following options open to him:
i) He could determine the number of hours for which the Claimant was entitled to recover loss and/or expense, decide that the Claimant should recover overhead and profit and apply the all inclusive contractual Daywork rates;
ii) He could determine that the Claimant was entitled to recover its actual costs only and ascertain what those costs were;
iii) He could decide that the Claimant was entitled to recover its costs together with a contribution to overhead and profit and identify the costs and make an allowance for overhead and profit.
Disposal