Cases - R Durtnell & Sons Ltd v Kaduna Ltd
Record details
- Name
- R Durtnell & Sons Ltd v Kaduna Ltd
- Date
- [2003]
- Citation
- EWHC 517
- Legislation
- Keywords
- Adjudication - adjudicator - JCT Standard Form - jurisdiction - jurisdiction of adjudicator - notice of intention to adjudicate - dispute at time of notice of intention to adjudicate - extension of time
- Summary
-
Durtnell were undertaking works for Kaduna pursuant to a JCT Standard Form of Building Contract. The scope and timing of the works was considerably increased, as a result of which disputes arose between the parties. Durtnell referred these disputes to adjudication and the adjudicator decided that Durtnell should be paid approximately £1.2m. However, Kaduna only paid about half of this sum, arguing that the adjudicator had exceeded his jurisdiction with regard to the remainder. Durtnell brought these proceedings for payment of the balance.
The grounds on which it was argued that the adjudicator lacked jurisdiction were:
That no dispute had arisen in relation to the entitlement of Durtnell to an extension of time at the time that the notice of intention to adjudicate was issued.
- It was argued that the time allowed in the contract for the contract administrator to make a determination in respect of the application had not expired and that no determination had been made. It was argued that, on its strict interpretation, the notice of intention to adjudicate asked the adjudicator to decide as a matter of principle that the items listed were variations that caused the completion of the works to be delayed. The notice did not require the adjudicator to calculate how much delay was caused or the amount to which Durtnell was entitled by way of payment of loss and expense.
- Further, it was argued on behalf of Durtnell that Kaduna could not accept part of the adjudicator's decision and challenge other parts of it: by a principle of law known as 'approbate or reprobate' it was argued that Kaduna must either accept or reject the entire decision. By paying pursuant to part of the decision it was argued that Kaduna had committed themselves to accepting the entire decision.
Further, it was also alleged that even if the adjudicator lacked jurisdiction, Kaduna had taken part in the adjudication and were now prevented from raising such arguments.
The judge compared the JCT adjudication scheme in clause 41a of the contract with the Scheme for Construction Contracts and concluded that whilst it was clear that under the Scheme for Construction Contracts only one dispute could be the subject of one notice of adjudication, the same did not apply to the JCT adjudication scheme.
With regard to the claim for an extension of time and loss and expense, the judge concluded that no dispute had arisen or could have arisen in relation to the extension of time until such time as the architect had made his determination or the contract period for the making of such determination had elapsed without a decision being made. This had not happened in this case, and therefore no dispute as to the extension of time entitlement had arisen at the time that the notice of intention to adjudicate was served.
The judge further concluded that, in any event, on a strict interpretation of the notice of intention to adjudicate, this issue was not one that has been referred to the adjudicator at all.
With regard to the application of the principle of approbation and reprobation, the judge concluded that this principle did apply to adjudication.
However, in the current case, Durtnell had referred several disputes and it was open to them without falling foul of that principle to accept the adjudicator's decision in relation to some of those disputes whilst challenging it in relation to others.
With regard to Kaduna taking part in the adjudication, the judge concluded that the test to be applied is one of waiver. That is to say, a party is not disabled from relying upon a point that an adjudicator has decided something not referred to him or not in dispute at the time of the notice of referral unless, with knowledge of the availability of the point, he has elected not to raise it. In the present case, the judge concluded that the courses that the adjudicator took that were not justified and that were in excess of jurisdiction were not such as Kaduna either did, or should have, appreciated, such that Kaduna's failure to raise the questions of jurisdiction any earlier should be treated as a waiver of the right to do so now.
The judge therefore concluded that Durtnell's arguments for payment of the balance of the sums decided by the adjudicator should fail.