Bell Building Projects Ltd V Carfin Developments Ltd
Scotland, Glasgow Sheriff Court
Sheriff Principal James A Taylor
24 September 2010
The contract incorporated the JCT Standard Form of Building Contract with Contractors Design 1998 Edition. The contractor submitted a claim for payment based on its valuation. The employer resisted payment and issued a notice of withholding in respect of six items with a total value in excess of the contractor’s valuation. The contractor referred the dispute to adjudication by a notice of adjudication after practical completion but before the expiry of the defects liability period which stated that the employer had issued a purported withholding notice in a specified sum and sought to withhold in relation to six defects items. The adjudicator held that the employer was entitled to withhold payment in respect of two of the six items with a total value which was less than the contractor’s valuation and awarded the contractor a specified sum. Some months after the expiry of the defects liability period the contractor issued an invoice for the value of the two defects items which the adjudicator held to have been valid grounds for withholding payment and served a further notice of adjudication. The adjudicator in the second adjudication found the contractor to be entitled to both the sums it claimed. The contractor issued court enforcement proceedings. The employer contended that the adjudicator in the second adjudication ought to have resigned because the dispute was the same or substantially the same as that which had been determined by the adjudicator in the first adjudication.
Sheriff Principal James A Taylor rejected the employer’s contention. He held that the disputes referred in the two adjudications were altogether different in that the issue in the first adjudication was whether effect should be given to the employer’s notice of withholding and the issue in the second adjudication was whether the contractor was entitled to a notice of completion of making good defects under the JCT Standard Form of Building Contract with Contractors Design in the absence of a schedule of defects having been served. The fact that the same sums were claimed by the contractor in both adjudications was therefore irrelevant. The passage of time and a change in circumstances could result in the same issue being referred to adjudication for a second time. A different stage in the contract had been reached in the second adjudication with different contractual provisions applying.