Cases - AMD Environmental Ltd v Cumberland Construction Company Ltd

Record details

Name

AMD Environmental Ltd v Cumberland Construction Company Ltd

Date

[2016]

Citation

EWHC 285

Legislation

• Late Payment of Commercial Debts (Interest) Act 1998
• Housing Grants, Construction and Regeneration Act 1996

Keywords

Adjudication

Summary

'I have observed before that this argument is frequently advanced and almost as frequently rejected by the courts: see St Austell Printing Company Ltd v Dawnus Construction Holdings Ltd [2015] EWHC 96 (TCC). The only recent case of which I am aware, in which it was successfully argued that the dispute had not crystallised by the time that the adjudication started, was Beck Interiors Ltd v UK Flooring Contractors Ltd [2012] EWHC 1808 (TCC). That was a situation where the claim was sent to the responding party after close of play on Maundy Thursday, and where the notice of adjudication was then served the following Tuesday. Akenhead J had no difficulty in finding that the claim had not been disputed by silence over the Easter weekend, so that crystallisation had not occurred by the following Tuesday. But in general terms, the courts have found that a claim which is not accepted in whole or in part for a reasonable period thereafter, is deemed to be disputed: see Ringway Infrastructure Services Ltd v Vauxhall Motors Ltd [2007] EWHC 2421 (TCC).

In the present case I have concluded that, for a number of reasons, the crystallisation argument is hopeless.

I consider that it is wrong in principle to suggest, as Cumberland must do, that a dispute had not arisen until every last particular of every last element of the claim had been provided. When a contractor or a sub-contractor makes a claim, it is for the paying party to evaluate that claim promptly, and form a view as to its likely valuation, whatever points may arise as to particularisation. Efforts to acquire further particularisation should proceed in tandem with that valuation process.

Disputes about an alleged lack of particularisation are commonplace in building contract disputes. They are part of the overall dispute between the parties. In an ordinary case, a paying party cannot put off paying up on a claim forever by repeatedly requesting further information; a fortiori, a paying party cannot suggest that there is no dispute at all because the particularisation of the claim is allegedly inadequate. Any other conclusion would allow a paying party limitless time, either to avoid an adjudication altogether, or at least to avoid the enforcement of any adverse decision. It would deprive the payee of its statutory right to adjudicate.

Accordingly, in my view, the alleged absence of particularisation is not a proper ground for resisting enforcement of an adjudicator's decision. I respectfully agree with the similar conclusion reached by Weatherup J in Gibson (Banbridge) Ltd v Fermanagh District Council [2013] NIQB 16.'