Order for delivery up of documents

By Victoria Russell, Fenwick Elliott

Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd [2015] EWHC 2915 (TCC) (23 October 2015)

Pursuant to a contract based on the NEC 3 Form, ICI engaged MMT to install steelwork and tank works at ICI’s new paint processing plant in Northumberland. Disputes arose between the parties about the quality of the welding carried out by MMT and as to the value of MMT’s work, resulting in an adjudication in which MMT claimed £7.5 million. The Adjudicator decided that ICI had not served a valid payment notice with the result that MMT was entitled to the sum claimed.

During the course of the referral, the contract was terminated. MMT argued that as a result of that termination, it was no longer required to perform obligations under the contract, including the provision of various project documents which ICI sought for the operation of the plant. ICI therefore started a second adjudication, seeking declarations that it was entitled to certain documents that it listed in a schedule to the Notice of Adjudication and, further, for delivery up of those documents. The adjudicator made a declaration that ICI was entitled to these documents but did not make an order for delivery up to them.

ICI applied to the Technology & Construction Court for enforcement of the adjudicator’s decision by way of a declaration in respect of the entitlement to the documents and also sought an order for delivery up of them.

Mr Justice Edwards-Stuart held that ICI was not entitled to an order for delivery up of the documents. He said:

“…not only are there triable issues but also there does not exist sufficient information upon which the court can make a decision about the extent of the disclosure that ICI really needs. I suspect that a significant part of the documentation listed at Schedule 1 would, if provided, be of limited, if any, use to ICI. Conversely, I can understand that there may be some documents for which ICI does have an immediate need. The difficulty is that, upon the information presently available, it is impossible to know where to draw the line.

From this it must follow that the court is not in a position to formulate an order for delivery up that would fairly reflect the adjudicator’s declaration of entitlement, even if it would otherwise be appropriate to do so. Indeed, as I have already mentioned, even if it were possible to draw up such an order – in other words to identify the documents that ICI really needed – I consider that to make such an order would be going further than a mere declaration of entitlement would warrant.

This is an application for summary judgment, so unless the position is very clear, relief should be refused. This is particularly so if the relief that is sought is for specific performance or a mandatory injunction to deliver up documents….

In my view the only way in which the position might be preserved, and effect thereby given to the adjudicator’s declaration of entitlement, would be by way of an interim injunction requiring MMT to preserve the documents until further order so that relevant documents, if sufficiently identified, could be the subject of a more focused application for delivery up. However, ICI has not made such an application and so it would not be appropriate to grant relief in that form on this application.

So far as the declaration is concerned, the question of ICI’s entitlement to the documents is not one that has been explored before me on the merits. It would therefore be inappropriate for the court to make any declaration of entitlement, but what it can and should do is to declare that the adjudicator’s decision is valid and binding. That means that the adjudicator’s declaration of entitlement will stand unless and until it is overruled by a decision of the court made on the merits”.

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