CADR Adjudication

MW High Tech Projects UK Ltd V Balfour Beatty Kilpatrick Ltd

Friday, 5 June, 2020

[2020] EWHC 1413 (TCC)

O’Farrell J

Key terms:

Adjudicators’ decisions; Construction contracts; Delay; Disputes; Expert reports; Extensions of time; JCT contracts; Jurisdiction

In this adjudication MW High Tech Projects UK Ltd (MWH) sought a declaration that an adjudicator did not have jurisdiction to resolve a claim referred to him by Balfour Beatty Kilpatrick Ltd (BB). The claim originally arose from a sub-contract in which MWH had engaged BB as a sub-contractor to carry out M&E services for the construction of a new laboratory. The sub-contract (the contract) was a JCT design and build subcontract 2011 which included bespoke amendments. Within the contract clause 2.17.1  stated that BB was required to give notice of any anticipated delay and pursuant to clause 2.18.2 MWH was required to notify BB of its decision in respect of these notices “as soon as is reasonably practicable and in any event within 16 weeks of receipt of the required particulars”. Delays occurred to the works and in August 2019 BB referred its claim for an extension of time to adjudication. On 10 October 2019 the adjudicator published his decision awarding BB the full EOT of 282 days that they had requested.

MWH contended during Part 8 proceedings that BB had served a new and substantial delay report (the Goodman Report), only eight days before commencing the adjudication. MWH argued that the Goodman Report amounted to a new claim since it submitted new information and MW was entitled to 16 weeks to respond to that information. Eight days had thus fell short of the 16 weeks stated in the contract (Clause 2.18.2).

BB argued that the adjudicator did in fact have jurisdiction and that it had given plenty of notice for the EOT in the form of five different notices of delay submitted over the span of 2018 and 2019. BB claimed that MWH had failed to deal with those notices within the 16-week contractual period. As such BB provided the Goodman Report as additional evidence in support of its original claim. Thus, no new dispute had crystalized at all.

The judge granted the declaration in favour of the defendant. O’Farrell J considered the clauses of the subcontract and she emphasised that whilst in this instance the Goodman Report had created a new dispute, submission of additional or supplementary material could lead to a risk of restarting the 16-week period. In this instance the clause 2.17.1 delay notice was sufficient. The judge also found that the expert report served by BB didn’t include any novel issues that were sufficient to re-start the 16 week notice period contained within the contract.

The key takeaway from this adjudication is that whilst here the Goodman Report was not treated as a fresh notification there is certainly a possibility that this could occur in the future. This is entirely dependent on whether the material submitted has the potential to change the original claim. Contractors should be careful about submitting expert analysis and take heed of advancing the dispute further than original notices of delay may have defined it.

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