Bovis Lend Lease Ltd v The Trustees Of The London Clinic
The employer's contention that the contractor's claim for loss and expense was new and based on new expert evidence with the results that there was no crystallised dispute in respect of the claim and that the adjudicator had no jurisdiction to determine the claim should be rejected
28 January, 2009
BOVIS LEND LEASE LTD V THE TRUSTEES OF THE LONDON CLINIC
Technology and Construction Court
28 January 2009
28 January 2009
The contract incorporated JCT 98 as amended. Completion of the works was achieved 58 weeks late. The architect granted a four week extension of time and allowed Some £150,000 on account of prolongations costs in its valuations. The contractor applied for further extensions of time and prolongation costs. The contractor referred to adjudication is claims for extensions of time, the recovery of liquidated damages deducted by the employer and disruption related loss and expense. The adjudicator decided in favour of all the claims made by the contractor. The contractor began enforcement proceedings and applied for summary judgment. The contractor's claim for loss and expense was new and based on new expert evidence with the results that there was no crystallised dispute in respect of the claim and the adjudicator had no jurisdiction to determine the claim.
Akenhead J rejected the employer's contention. It was not necessary to decide whether or not the "new" quantum claim put forward in the draft referral was so new that it amounted to a new claim on the basis that all the contents of the draft referral were in effect and in substance disputed by the employer in its letter sent subsequent to its review of the contractor's claims and just before the referral to adjudication. However, on analysis the argument put forward by the employer in that letter was not that no dispute could have arisen; and instead was that the claim had not been substantiated and that there could be no claim under clause 26 of JCT 98 and no liability for any interim payment under clause 30 unless and until more information was provided. Whilst that argument might or might not have been a good defence to the loss and expense claim, it became part of the dispute which was referred to adjudication and the adjudicator properly addressed this issue as a matter of substance. The employer's argument that if the claim for the loss and expense under clause 26 was not justified, it could not and did not arise under the adjudication clause, which permitted disputes "under the contract" to be referred, should be rejected on the basis that the issue as to whether the claim was valid under the contract was part of the dispute which had arisen.