Cases - Christiani & Nielsen Ltd v The Lowry Centre Development Company Ltd
Record details
- Name
- Christiani & Nielsen Ltd v The Lowry Centre Development Company Ltd
- Date
- [2000]
- Citation
- TCLR 2 TCC
- Legislation
- Keywords
- Construction contracts - adjudication - adjudicator's jurisdiction - ad hoc jurisdiction - date of agreement - rectification - enforcement - summary judgment - new argument raised before the court - whether can contract out of the Housing Grants, Construction and Regeneration Act 1996 - whether the parties were entitled to raise a new argument before the court - whether the adjudication decision should be enforce by summary judgment
- Summary
-
Christiani were seeking to enforce the decision of an adjudicator that Lowry should pay £188,000, which had been deducted by them by way of liquidated damages.
Lowry had calculated the amount of liquidated damages to be deducted on the basis of a 57-week contract period even though the signed contract referred to an 81-week contract period. Lowry maintained that the reference to 81 weeks in the contract was a mistake common to both parties, which should therefore be rectified.
The adjudicator applied the terms of the contract as executed and ordered that the sums deducted by way of liquidated damages be paid to Christiani. Lowry refused to comply with this order so Christiani sought to enforce the decision of the adjudicator and applied for summary judgment.
The court concluded in this case that the parties had not consented to conferring ad hoc jurisdiction on the adjudicator to decide his own jurisdiction and that therefore this was a matter for determination by the court.
The court concluded that the deed superseded the earlier letter of intent and was not merely an agreement to vary the contract made in a letter of intent. Therefore the contract set out in the deed was made after 1 May 1998.
The court found against Lowry for 2 reasons. Firstly, the court decided that the legal basis now being advanced by Lowry (namely an argument based on estoppel) was not one that had been raised before the adjudicator and therefore Lowry should be prevented from making that argument now even though they had previously contested the jurisdiction of the adjudicator on different legal bases. Secondly, the court decided that Lowry's contentions should fail on the basis that any agreement or understanding of the parties that the Act would not apply, even though the contract had been entered into after 1 May 1998, would be one which robbed one of the parties of its statutory entitlement to an adjudication.
Therefore the court concluded that parties cannot contract out of the adjudication provisions of the Act.
The court concluded that Lowry's claim for rectification would fail and that therefore the adjudicator had full jurisdiction to decide the dispute in the way that he did.
The court expressly made no decision on whether or not an adjudicator has jurisdiction to decide a claim for rectification.