William Verry (Glazing Systems) Ltd -v- Furlong Homes Ltd
Case reference:
[2005] EWHC 138 (TCC)
Thursday, 13 January 2005
Key terms: Jurisdiction - Breach of Natural Justice “No Dispute” - Scope of Dispute - Part 8
William Verry sought a declaration that the adjudicator’s decision of 26 October 2004 was binding. The defendant argued that the adjudicator had exceeded his jurisdiction or acted unfairly in reaching it. It was the defendant, Furlong Homes, that had commenced the adjudication.
The contract was for Verry to design, supply and erect curtain walling and related items. The contract completion date was late 2003. The works were not finally completed until July 2004. Verry had been seeking an extension of time. Furlong refused to award an extension of time and instead sought repayment of £143,898.15. Furlong did not deal with the detail of the request of Verry’s extension of time but instead referred the matter to adjudication. The notice of adjudication was drafted in extremely wide terms, anticipating that all issues relating to extensions of time and payment issues under the final account should be resolved within 28 days.
Furlong argued that Verry should not be able to submit further details in respect of their extension of time claim, which they had done during the course of the adjudication.
In particular His Honour noted that part of the notice of adjudication referred the question as to whether the extension of time “is” correct. He took this to mean the question of what extension of time (therefore involving a review) should be given rather than considering whether the actual extension of time awarded “was” correct, which would have been a more limited question.
His Honour held that Verry was merely amplifying the detail of the claim in order that a third party adjudicator could understand it. The adjudicator, unlike Furlong, would not have had the benefit of being involved in the contract. Importantly, Verry relied upon the original grounds for their extension of time although they had provided more detail in respect of each of those grounds of which was acceptable. They also had requested slightly more time, but that was simply because the contract had finished and it was possible to make a final assessment. Further, it was Furlong that commenced the adjudication not Verry.
The adjudicator therefore correctly took into account the further details provided by Verry.
Furlong raised a procedural irregularity, based on an argument that the adjudicator did not have enough time to deal with all of the issues. HHJ Coulson QC noted at paragraph 11 that the adjudication procedure was “fundamentally unsuited” dealing with complex issues in such a short timescale. However, His Honour concluded that it did not “lie in the mouth of Furlong to criticise the suitability of the adjudication process or final account claims when they themselves started this adjudication” (paragraph 55). He also noted that the adjudicator had warned the parties that he may need longer because of the complexity of the dispute. He therefore concluded that an issue with regards to the non-provision of certain documents did not lead to any irregularity and therefore granted the declaration sought by Verry.
The contract was for Verry to design, supply and erect curtain walling and related items. The contract completion date was late 2003. The works were not finally completed until July 2004. Verry had been seeking an extension of time. Furlong refused to award an extension of time and instead sought repayment of £143,898.15. Furlong did not deal with the detail of the request of Verry’s extension of time but instead referred the matter to adjudication. The notice of adjudication was drafted in extremely wide terms, anticipating that all issues relating to extensions of time and payment issues under the final account should be resolved within 28 days.
Furlong argued that Verry should not be able to submit further details in respect of their extension of time claim, which they had done during the course of the adjudication.
In particular His Honour noted that part of the notice of adjudication referred the question as to whether the extension of time “is” correct. He took this to mean the question of what extension of time (therefore involving a review) should be given rather than considering whether the actual extension of time awarded “was” correct, which would have been a more limited question.
His Honour held that Verry was merely amplifying the detail of the claim in order that a third party adjudicator could understand it. The adjudicator, unlike Furlong, would not have had the benefit of being involved in the contract. Importantly, Verry relied upon the original grounds for their extension of time although they had provided more detail in respect of each of those grounds of which was acceptable. They also had requested slightly more time, but that was simply because the contract had finished and it was possible to make a final assessment. Further, it was Furlong that commenced the adjudication not Verry.
The adjudicator therefore correctly took into account the further details provided by Verry.
Furlong raised a procedural irregularity, based on an argument that the adjudicator did not have enough time to deal with all of the issues. HHJ Coulson QC noted at paragraph 11 that the adjudication procedure was “fundamentally unsuited” dealing with complex issues in such a short timescale. However, His Honour concluded that it did not “lie in the mouth of Furlong to criticise the suitability of the adjudication process or final account claims when they themselves started this adjudication” (paragraph 55). He also noted that the adjudicator had warned the parties that he may need longer because of the complexity of the dispute. He therefore concluded that an issue with regards to the non-provision of certain documents did not lead to any irregularity and therefore granted the declaration sought by Verry.