Cases - Connex South Eastern Ltd v MJ Building Services Group plc

Record details

Name
Connex South Eastern Ltd v MJ Building Services Group plc
Date
[2005]
Citation
EWCA Civ 193 (CA) BLR201
Legislation

Housing Grants, Construction and Regeneration Act 1996

Keywords
Construction contracts - adjudication - contract in writing - right to refer a dispute at any time - termination - abuse of process - whether there was a contract in writing - whether the right to refer a dispute to adjudication survived following termination of the contract - whether it was an abuse of process to refer a dispute to adjudication 1 ½ years after repudiation of the contract
Summary

MJ Building Services Group (MJBSG) contracted with Connex for the installation of CCTV systems at various railway stations.

A single contract was entered into between MJBSG, Connex South Eastern Ltd and Connex South Central Ltd because the two Connex companies operated stations in different geographical regions. The contract consisted of a tender proposal dated 31 July 2000, which was accepted on behalf of the two Connex companies by their appointed project managers.

In August 2001 Connex South Central Ltd was acquired by another company and in December 2001 MJBSG were instructed not to commence any further installations until further notice.

In February 2002 Connex South Central Ltd agreed terms with MJBSG for the completion of specified works although Connex South Eastern Ltd continued to assert that there was no concluded contract between them and MJBSG.

In November 2002 MJBSG wrote to Connex South Eastern Ltd stating that its denial of the existence of a contract (and therefore of its liability to pay) was a repudiatory breach of contract, which MJBSG accepted, thereby terminating the contract.

In February 2004 MJBSG commenced adjudication proceedings against both Connex companies, which were stayed by consent pending the outcome of proceedings brought by Connex South Eastern Ltd seeking the following declaratory relief:

  1. That the agreement alleged in the notice of adjudication was not one whose material terms are recorded in writing as required by the Act.
  2. That following termination of the contract MJBSG no longer has any statutory right to adjudication.
  3. That MJBSG's notice of adjudication is an abuse of process because MJBSG were seeking to start adjudication proceedings so long after it purported in November 2002 to accept a repudiation of the contract by Connex South Eastern Ltd.

The court of first instance found that there was sufficient evidence in writing of the material terms of the agreement alleged in the notice of adjudication, that there was still a right to refer a dispute to adjudication notwithstanding the termination of the contract and that such a referral was not an abuse of process.

On appeal, the parties did not seek to challenge the decision of the judge in relation to points (1) and (2).

In relation to point (3), the Court of Appeal found that a party is entitled to refer the dispute to adjudication at any time, that this means exactly what it says, that therefore there is no time limit and that therefore the referral was not an abuse of process.