Multiplex Constructions (UK) Limited -v- Mott MacDonald Limited
Case reference:
[2007] EWHC 20 (TCC)
Wednesday, 10 January 2007
Key terms: Dispute - Compliance with decision - specific performance - injunction - Declaration as to interpretation of contract
This was an application to enforce an adjudicator’s decision and arose out of the Wembley Stadium development. Mott was the structural engineer in the project and was engaged upon engineering design work for the Stadium since May 1998. On 6 April 1999 Mott entered into a consultancy agreement with Wembley National Stadium Limited (“WNSL”). Mott, Multiplex and WNSL then entered into novation agreements. Clause 13.1 of the novation agreement contained a clause allowing Multiplex access to “pertinent records”.
Multiplex subsequently asked Mott for access to “pertinent records” and a dispute arose between the parties as to the meaning of the interpretation of Clause 13.1. This was referred to adjudication and the adjudicator gave his decision that he had jurisdiction to decide the dispute and gave a decision as to the meaning of “pertinent” records, ordered Mott to provide access to these records within 7 days of the date of the decision.
Mott allowed Multiplex to inspect documents and Multiplex believe that these documents were insufficient. Multiplex then sought a declaration that the adjudicator’s decision was binding on the Mott and an order for specific performance or alternatively, either an injunction or damages.
There were two issues. Firstly whether the adjudicator had jurisdiction to reach his decision and secondly whether, as a matter of fact, there had been compliance with the adjudicator’s decision. Mott argued: (1) They never put forward an alternative interpretation of pertinent records and Multiplex never succeeded in widening the dispute; (2) There was not a dispute about the broader question of what was the true meaning of the phrase “all records pertinent to the services”; (3) Therefore the relief claimed by Multiplex was too wide; (4) the adjudicator had answered a broad question in his award i.e. the true meaning of the phrase “all pertinent records relating to the services”; and (5) as the adjudicator awarded Multiplex’s interpretation, the adjudicator should have dismissed Multiplex’s claim altogether.
His Honour Justice Jackson considered that he must construe the correspondence. On a fair reading of that correspondence, one issue in dispute was the true meaning of the phrase “all records pertinent to the services”. Multiplex put forward their favoured reading of the phrase and Mott asserted that the true meaning was something different without saying what it was. Therefore Multiplex had correctly formulated the first dispute in the notice of adjudication. This interpretation of the correspondence also leads to a result that accords with common sense. The adjudicator formulated his own interpretation of Clause 13.1 and in doing so was resolving a pre-existing dispute between the parties. He was therefore acting within his jurisdiction and his decision was binding on the parties until the dispute was finally determined by agreement between the parties or by arbitration.
The question whether the documents and electronic material made available by Mott amounted to compliance with the adjudicator's decision was a matter of controversy on the evidence before the Court. This issue could not be resolved on the basis of written evidence at a hearing under CPR Part 24. Therefore Multiplex failed in its application for summary judgement on its claims for specific performance, an injunction and/or damages. As there was still a dispute on the facts as to whether Mott had complied with the adjudicator’s decision, the proper course was for the court to grant a declaration as requested by Multiplex as the jurisdiction issue had been fully argued and Multiplex’s case on this issue was sufficient to warrant summary judgement. The question of the adjudicator’s jurisdiction remained a live issue and as a matter of policy the TCC should at each stage of litigation resolve every live issue which is then capable of resolution.
Multiplex subsequently asked Mott for access to “pertinent records” and a dispute arose between the parties as to the meaning of the interpretation of Clause 13.1. This was referred to adjudication and the adjudicator gave his decision that he had jurisdiction to decide the dispute and gave a decision as to the meaning of “pertinent” records, ordered Mott to provide access to these records within 7 days of the date of the decision.
Mott allowed Multiplex to inspect documents and Multiplex believe that these documents were insufficient. Multiplex then sought a declaration that the adjudicator’s decision was binding on the Mott and an order for specific performance or alternatively, either an injunction or damages.
There were two issues. Firstly whether the adjudicator had jurisdiction to reach his decision and secondly whether, as a matter of fact, there had been compliance with the adjudicator’s decision. Mott argued: (1) They never put forward an alternative interpretation of pertinent records and Multiplex never succeeded in widening the dispute; (2) There was not a dispute about the broader question of what was the true meaning of the phrase “all records pertinent to the services”; (3) Therefore the relief claimed by Multiplex was too wide; (4) the adjudicator had answered a broad question in his award i.e. the true meaning of the phrase “all pertinent records relating to the services”; and (5) as the adjudicator awarded Multiplex’s interpretation, the adjudicator should have dismissed Multiplex’s claim altogether.
His Honour Justice Jackson considered that he must construe the correspondence. On a fair reading of that correspondence, one issue in dispute was the true meaning of the phrase “all records pertinent to the services”. Multiplex put forward their favoured reading of the phrase and Mott asserted that the true meaning was something different without saying what it was. Therefore Multiplex had correctly formulated the first dispute in the notice of adjudication. This interpretation of the correspondence also leads to a result that accords with common sense. The adjudicator formulated his own interpretation of Clause 13.1 and in doing so was resolving a pre-existing dispute between the parties. He was therefore acting within his jurisdiction and his decision was binding on the parties until the dispute was finally determined by agreement between the parties or by arbitration.
The question whether the documents and electronic material made available by Mott amounted to compliance with the adjudicator's decision was a matter of controversy on the evidence before the Court. This issue could not be resolved on the basis of written evidence at a hearing under CPR Part 24. Therefore Multiplex failed in its application for summary judgement on its claims for specific performance, an injunction and/or damages. As there was still a dispute on the facts as to whether Mott had complied with the adjudicator’s decision, the proper course was for the court to grant a declaration as requested by Multiplex as the jurisdiction issue had been fully argued and Multiplex’s case on this issue was sufficient to warrant summary judgement. The question of the adjudicator’s jurisdiction remained a live issue and as a matter of policy the TCC should at each stage of litigation resolve every live issue which is then capable of resolution.