Cases - Edmund Nuttall Ltd v R G Carter Ltd

Record details

Name
Edmund Nuttall Ltd v R G Carter Ltd
Date
[2002]; (2000)
Citation
EWHC 400 (TCC); BLR 312:82 Con LR 24
Legislation
Keywords
Adjudication - extension of time - adjudicator - jurisdiction - jurisdiction of adjudicator - enforcement - matters not within notice - jurisdiction to consider matters not within notice
Summary

Nuttall were subcontractors to Carter in relation to the basement and substructure works of a new civic community centre and library in Norwich. Disputes arose as to entitlements for extensions of time and loss and expense, which Nuttall referred to adjudication. The adjudicator decided that Carter should pay Nuttall the sum of £1,023,115.

Carter did not pay, arguing that a dispute had not arisen in respect of the matter referred and therefore the adjudicator had no jurisdiction to decide on the matter. The crux of Carter's complaint was that Nuttall had referred different issues from the ones that had formed the basis of prior exchanges between the parties.

Nuttall had formulated a claim for an extension of time and loss and expense, which they had sent to Carter in May 2001 (referred to as 'the May claim'). This claim amounted to a total sum claimed of £1,979,752. This claim was formally responded to by Carter on 23 August 2001, in which this claim was rejected.

After further exchanges of correspondence, Nuttall issued a notice of intention to adjudicate on 14 December 2001 in which they claimed (a corrected) sum of £1,253,495.76 or such other sum as the adjudicator may consider appropriate.

Attached to the referral notice was a claim for an extension of time based on a report prepared by Mr Anthony Caletka ('the Caletka report'). This report had not previously been disclosed to Carter. Whilst this report showed that Nuttall were entitled to the same extension of time that had been claimed in the May claim (235 days), the justification of the extension of time was quite different. The basis of the calculation for the entitlement to loss and expense was also quite different from the May claim.

Considering the judgments in Fastrack v Morrison (2000), Sindall v Solland (2001) and K&D Construction v Midas Homes (2001), the judge concluded that there was more to a dispute than simply a claim that has not been accepted. He concluded that for there to be a dispute, there must have been an opportunity for the protagonists each to consider the position adopted by the other and to formulate arguments of a reasoned kind. What constitutes a dispute between the parties is not only a claim that has been rejected, if that is what the dispute is about, but rather the whole package of arguments advanced and facts relied upon by each side. A party can refine its arguments and abandon points not thought to be meritorious without altering fundamentally the nature of the dispute between them. However, what a party cannot do is abandon wholesale facts previously relied on or arguments previously advanced and contend that because the claim remains the same as that made previously, the dispute is the same.

The judge concluded that the dispute that was referred to adjudication in the notice of adjudication was the dispute as set out in the May claim. In fact, the adjudicator had based his decision on the Caletka report, which did not form part of that dispute. Therefore, the adjudicator based his decision on something that had not been referred to him for decision; his decision was therefore made without jurisdiction and was therefore unenforceable.