Cases - McAlpine PPS Pipeline Systems Joint Venture v Transco Plc

Record details

Name
McAlpine PPS Pipeline Systems Joint Venture v Transco Plc
Date
[2004]; (2004)
Citation
AII ER (D) 145 (May); BLR 352
Legislation

Housing Grants, Construction and Regeneration Act 1996

Keywords
Construction contracts - adjudication - jurisdiction - whether adjudication decided on basis otherwise than referral - scope of referral - late admission of new evidence - fairness - new issues - summary judgment - enforcement - NEC Conditions of Contract
Summary

The adjudicator had decided that Transco should pay McAlpine the sum of £52,119.62 plus VAT as interest for late payment. McAlpine sought to enforce this decision and applied for summary judgment.

McAlpine served an additional 1,500 documents in relation to its original claim for adjudication against Transco Plc, on 2 separate occasions after the referral notice. Transco objected that McAlpine had effectively raised a new case which was not contained in the original referral to adjudication.

The notice of intention to adjudicate claimed interest in the sum of the £69,965.16 because of Transco's failure to certify the amounts due to the referring party by the assessment date and/or the amount that was stated to be due in a certified payment being corrected at a later certificate. The adjudicator admitted the additional documents and found in favour of McAlpine, who consequently applied for summary judgment following non-payment by Transco.

However, the judge concluded that new issues were introduced in the course of the adjudication without the agreement of Transco both by McAlpine and by the adjudicator himself. This evidence was objected to by Transco on the basis that it represented a change in the whole basis on which McAlpine put its claim. The judge was satisfied that the case ultimately put forward by McAlpine represented such a change in the nature of the dispute referred to the adjudicator that Transco had a realistic prospect of arguing successfully either that the adjudicator failed to give a decision that was responsive to the dispute that was referred to him or, put another way, gave a decision on what amounted to a different dispute that had not been referred to him. In either case, the adjudicator acted beyond his jurisdiction.

Judge Toulmin held that the following matters were relevant to an adjudicator or a court considering issues concerning an adjudicator's jurisdiction or an adjudicator deciding to whether to admit further evidence:

  1. what issues had been discussed at meetings before the referral to adjudication;
  2. what dispute had been referred after the defendant had been given the opportunity to comment;
  3. upon what basis had the dispute been referred;
  4. had the adjudicator's decision been responsive to the issues;
  5. had new issues been raised;
  6. had there been any objections to any new issues;
  7. did any objection go to the fundamental nature of the dispute that had been referred;
  8. had the fairness of the procedure been affected; and
  9. whether the fairness of the decision had been significantly affected.

In the present case, the whole basis of the claim had changed and applying settled principles, that change was such that Transco had a realistic chance of contending that the adjudicator had either failed to give a decision that was responsive to the issues referred, or had given a decision on matters that had not been referred to him. In any event, it was arguable that Transco had suffered prejudice due to the late service of substantial amounts of evidence in support of a new case. McAlpine's application for summary judgment was dismissed.