Cases - Total M&E Services Ltd v ABB Technologies Ltd
Record details
- Name
- Total M&E Services Ltd v ABB Technologies Ltd
- Date
- [2002]
- Citation
- EWHC 248 (TCC)
- Legislation
- Keywords
- Construction - adjudication - jurisdiction - misdescription of one party in referral notice - whether misdescription of party in notice deprived adjudicator of jurisdiction -- enforcement of adjudication award - summary judgment - agreement in writing - oral variation of contract - set-off - counterclaim - recovery of costs of adjudication - whether implied term to provide final account within a reasonable time - stay of execution based on impecuniosity - Housing Grants, Construction and Regeneration Act 1996, sections 107 and 111
- Summary
-
The claimant was seeking enforcement of an adjudicator's decision to the effect that they should be paid the additional sum of £462,788. In addition, they were seeking to recover their costs of the adjudication amounting to some £93,000.
ABB defended enforcement proceedings on 2 principal bases:
- They argued that the referral notice had been made out in the name of Total Mechanical And Electrical Services Ltd, which was a wholly different company from the company that ABB were in contact with - namely Total M&E Services Ltd.
- They argued that the contract between Total M&E Services Ltd and ABB contained no provision for variation. Therefore all of the additional works being claimed by Total were separate contracts, which could not all be referred in one referral notice.
With regard to point (1), the judge concluded that this is a clear case of description where the claimant and defendant at all stages were aware of the true identities of the contracting parties and no one could be misled. The judge went on to comment that this might not have been so but for the fact that the two companies had nothing to do with one another. Where similarly named companies are part of the same group, precise description of the referring party could be critical.
Total made a claim for their costs incurred in bringing the adjudication and damages for breach of contract. They argued that ABB's failure to pay meant that it was foreseeable that the claimant would seek adjudication and properly incur costs, and thereafter seek to recover them. The judge disagreed and concluded that such costs cannot give rise to a claim as damages for breach.
With regard to point (2), the judge concluded that the adjudicator made his decision on the basis of the dispute arising out of the single written construction contract as varied orally by the parties. The contract as varied is clearly within the provisions of section 107 of the Act, notwithstanding that it is a contract evidenced partly in writing and partly orally. [Note that this decision was produced just before the decision in RJT Consulting Engineers Ltd v DM Engineering (Northern Ireland ) Ltd (2002)] The adjudicator therefore had jurisdiction to make determinations as to the additional works.
Further, ABB sought set-off and counterclaimed against the adjudicator's decision. This claim was rejected for two reasons. Firstly, the judge concluded that the adjudicator was properly seized of the issues that the claimants were now seeking to reopen. Secondly, the judge concluded that there was inadequate evidence to support the counterclaim in any event.
Finally, ABB sought a stay of execution on the basis of the impecuniosity of the claimant. The judge concluded that the claimant had few fixed assets but that the evidence as to the risk of future non-payment was not based on compelling and uncontradicted evidence. He therefore concluded that there were no special circumstances that rendered it inexpedient to enforce the judgment.