Cases - Dean and Dyball Construction Ltd v Kenneth Grubb Associates
Record details
- Name
- Dean and Dyball Construction Ltd v Kenneth Grubb Associates
- Date
- [2003]
- Citation
- EWHC 2465
- Legislation
- Keywords
- Adjudication - Housing Grants, Construction and Regeneration Act 1996 s.107 - enforcement - adjudicator - unfairness
- Summary
-
D&D Construction were undertaking construction works associated with a new Marina for D&D Developments. As part of those works it was necessary to construct a marine gate. Grubb was a consulting engineer and was approached by D&D Construction to design the gate.
D&D considered that the gate as designed by Grubb did not operate properly. There followed a period during which various claims were made, followed ultimately by a notice of adjudication. However, although the notice of adjudication relied on the rehearsed arguments with regard to the failure of the gate and the negligence of Grubb, the sum claimed in the notice was different from any sum previously claimed in correspondence.
The adjudicator decided that Grubb were liable for the sum of £315,390.14. Grubb resisted enforcement of that decision on many grounds, one of which was that, relying on the decisions in Nuttall v Carter (2002), the matter referred had not formed part of the exchange of arguments between the parties.
The judge at the enforcement proceedings was the same judge who had decided the case of Nuttall v Carter, who held as follows:
'In my judgment whether, at the point of the giving of a notice of adjudication, there is a crystallised dispute in respect of the matter sought to be referred when the quantum of the sum claimed and the alleged composition of that sum has altered from the sum previously claimed is a question of fact and degree the answer to which depends upon what, on the facts, the dispute between the parties was actually about. If liability in respect of a claim is not, at the point of giving notice of adjudication, in dispute, so that the only dispute is about quantum, it is likely to be difficult to say that there is a dispute about a formulation of quantum which is new at that stage and which the responding party has not had an opportunity to consider. However, as it seems to me, the situation is different if liability itself is in dispute and the party alleged to be liable has not accepted that it is bound to pay to the other party any sum whatever. In such a case there is a crystallised dispute as to liability - it is denied - and a crystallised dispute as to the obligation of the party alleged to be liable to make a payment to the other party - the responding party's position is that it will pay nothing. Those crystallised disputes do not cease to be crystallised simply because the quantum of the claim is altered.'
The judge was clearly troubled by the adjudication rules in the Association of Consulting Engineers (ACE) Conditions, which allow the adjudicator to take evidence from one party in the absence of the other. However, in this case he concluded that:
'There was no suggestion in the present case on behalf of Grubb that [the adjudicator] did in fact have regard to evidence given on behalf of D and D of which [Grubb] was unaware or which [Grubb] did not have an opportunity to answer. The objection was simply one of form. It involved the somewhat unpromising proposition that the Procedure, if operated in accordance with its express terms, could be operated unfairly. Perhaps that could happen, but I am satisfied that it did not happen in the present case and that no dispassionate observer, aware of the circumstances, would consider that there was a risk of actual unfairness on the part of [the adjudicator].'
It was determined that where liability is disputed, there is a crystallized dispute as to liability. In addition, it was decided that the requirements for fairness and natural justice can be met where one party agrees that the adjudicator may hear evidence from the other in its absence.