Cases - C J P Builders Ltd v William Verry Ltd
Record details
- Name
- C J P Builders Ltd v William Verry Ltd
- Date
- (2008)
- Citation
- EWHC 2025
- Legislation
- Keywords
- Subcontract - contract amendment - adjudication - appointment of adjudicator
- Summary
-
CJP Builders employed William Verry under a subcontract to carry out certain development works. There was a dispute over payment and CJP commenced adjudication proceedings for an allegedly outstanding amount. The subcontract documents, which had been produced by William Verry, amended the DOM/2 Form of Domestic Sub-Contract and incorporated a large number of other 'Sub-Contract Documents'.
A preliminary issue arose over whether the adjudicator had been validly appointed. The appointment was made under the DOM/2 rules and CJP contended that the TeCSA adjudication rules should apply by virtue of the amendments made to the subcontract, particularly the amended Clause 38. The court held that there was a 'straight conflict' between these provisions. DOM/2 provided a 'clear and comprehensible code for adjudication' and the amended Clause 38 required any adjudication to be carried out under a different code in accordance with the main contract. It was clear that William Verry 'in putting together the subcontract documentation did not think clearly about the consequence of inserting clause 38.1 without deleting the DOM/2 condition'. In fact, the amendment was part of William Verry's own standard set of amendments and had not been specifically prepared for this subcontract with CJP.
The court resolved the conflict by applying Clause 2.2 of the DOM/2 conditions which provides that, in the event of a conflict, the Appendix should prevail. In this subcontract the appendix had been replaced by a set of 'Pre-Order Meeting Minutes' which referred to DOM/2. Therefore, the adjudication code in DOM/2 applied and not the one in the main contract. The court also held that the contra preferentum rule applied and the ambiguity should be resolved against the author of the amendments, who in this case was William Verry.
The point is that considerable time and effort was wasted on resolving this issue including legal fees. This defeated the whole purpose of the Construction Act, which was intended to provide for speedy resolution of disputes under construction contracts through adjudication. The case also illustrates the dangers of adopting standard sets of amendments to standard forms without thinking through the consequences.