Total M&E Services Limited -v- ABB Building Technologies Limited (formerly ABB Stewarts Limited)
Case reference:
[2002] EWHC 248 (Technology), [2002] EWHC 248 (TCC)
Tuesday, 26 February 2002
Key terms: Summary judgment - recovery of costs - mis-description of one party - construction contracts in writing - set-off - stay
This was an application for summary judgment in respect of a claim to enforce an adjudication decision. The claim comprised the amount of the decision, together with the adjudicator's fees and expenses and also the costs of the adjudication claimed by Total M&E Services Limited. The Defendant, ABB Building Technologies Limited, entered into a labour only sub-contract for electrical installation works with Total M&E Services on 13th January 1999. The agreed price was £250,000 with an anticipated duration of 25 weeks. The contract contained no mechanism for variation. Substantial additional works were carried out, and those additional works were included in a draft final account.
The amount due to Total M&E Services became the subject of an adjudication, and as the contract did not contain an adjudication provision the Statutory Scheme was implied under the Act. ABB contended that the adjudicator lacked jurisdiction on the basis that the contract did not contain a clause allowing variations, and so as a result further work requested by ABB could not have been carried out under the sub-contract, but at best in respect of separate collateral contracts. Further, that a mis-description of the claimant deprived the adjudicator of jurisdiction. Third, that in any event the costs of the adjudication were not recoverable as damages. Fourth, ABB claimed set-off for (1) defective work and (2) failure to provide a proper final account. Finally, the question of a stay arose.
HHJ Wilcox held that both parties were well aware of the true identity of the contracting party and that no one had been mislead. In respect of costs, he held that there was no provision in the Act or elsewhere in the contract for the recovery of costs and therefore such costs could not be recovered as damages. In respect of variations, he decided that the additional work was of the same type as that contained in the original sub-contract, and that the scope of that work had therefore been enlarged. The approach of the adjudicator in valuing and including that work was therefore correct. The adjudicator also had jurisdiction to decide issues of set-off and so the decision should be enforced. Summary judgment was therefore given in favour of Total. However, a stay was granted in respect of the defective work.
The amount due to Total M&E Services became the subject of an adjudication, and as the contract did not contain an adjudication provision the Statutory Scheme was implied under the Act. ABB contended that the adjudicator lacked jurisdiction on the basis that the contract did not contain a clause allowing variations, and so as a result further work requested by ABB could not have been carried out under the sub-contract, but at best in respect of separate collateral contracts. Further, that a mis-description of the claimant deprived the adjudicator of jurisdiction. Third, that in any event the costs of the adjudication were not recoverable as damages. Fourth, ABB claimed set-off for (1) defective work and (2) failure to provide a proper final account. Finally, the question of a stay arose.
HHJ Wilcox held that both parties were well aware of the true identity of the contracting party and that no one had been mislead. In respect of costs, he held that there was no provision in the Act or elsewhere in the contract for the recovery of costs and therefore such costs could not be recovered as damages. In respect of variations, he decided that the additional work was of the same type as that contained in the original sub-contract, and that the scope of that work had therefore been enlarged. The approach of the adjudicator in valuing and including that work was therefore correct. The adjudicator also had jurisdiction to decide issues of set-off and so the decision should be enforced. Summary judgment was therefore given in favour of Total. However, a stay was granted in respect of the defective work.