Shimizu Europe Limited v Automajor Limited
Case reference:
[2002] EWHC 1571 (TCC)
Thursday, 17 January 2002
Key terms: Jurisdiction - TeCSA Rules - Part 8 claim - slips and errors - part payment of decision - waiver
The employer, Automajor, engaged Shimizu as contractor to design and build a business workspace in London under the JCT 98 WCD. The TeCSA Rules 1999 (version 1.3) applied. Shimizu gave notice of adjudication in respect of several matters, including a claim for £161,996.89 for alleged variations to smoke ventilation work.
Automajor paid £50,000 on a without prejudice basis towards the alleged smoke ventilation variation. The adjudicator decided that the smoke ventilation works were not variations, and that he had no jurisdiction to consider a counterclaim demanding repayment of the £50,000. He went on to decide that the full sum in respect of the smoke ventilation works should be paid as Automajor had paid some money on account in expectation that adjustments would be made in the final account. Automajor paid part of the decision, but refused to pay the £161,996.81 in respect of the smoke ventilation works. Shimizu issued Part 8 proceedings seeking enforcement. Two issues arose. First, should the decision be enforced, and second, did Automajor waive any objection by making part payment.
HHJ Seymour QC held that the adjudicator had been asked to decide what sum should be paid, and so any mistake that might have been made by the adjudicator did not go to his jurisdiction. The place to correct it was in the final account or by arbitration. Part 8 proceedings were appropriate. A decision of an adjudicator might in some circumstances be several, but where a decision depended on the assessment of the matters in dispute a party could not cherry pick those parts of the decision that it wishes to pay and ignore others. Automajor had, by making part payment and inviting the adjudicator to correct the decision, elected to treat the whole decision as valid and waived its objection.
Automajor paid £50,000 on a without prejudice basis towards the alleged smoke ventilation variation. The adjudicator decided that the smoke ventilation works were not variations, and that he had no jurisdiction to consider a counterclaim demanding repayment of the £50,000. He went on to decide that the full sum in respect of the smoke ventilation works should be paid as Automajor had paid some money on account in expectation that adjustments would be made in the final account. Automajor paid part of the decision, but refused to pay the £161,996.81 in respect of the smoke ventilation works. Shimizu issued Part 8 proceedings seeking enforcement. Two issues arose. First, should the decision be enforced, and second, did Automajor waive any objection by making part payment.
HHJ Seymour QC held that the adjudicator had been asked to decide what sum should be paid, and so any mistake that might have been made by the adjudicator did not go to his jurisdiction. The place to correct it was in the final account or by arbitration. Part 8 proceedings were appropriate. A decision of an adjudicator might in some circumstances be several, but where a decision depended on the assessment of the matters in dispute a party could not cherry pick those parts of the decision that it wishes to pay and ignore others. Automajor had, by making part payment and inviting the adjudicator to correct the decision, elected to treat the whole decision as valid and waived its objection.