Geris Handlesgesellschaft GMBH v Les Constructions Industrielles De La Mediterranee (CNIM) SA

Summary judgment should not be entered in the sub-contractor's favour ordering the contractor to pay the sum assessed by the adjudicator as being the value of the work it had carried out up to the time the contractor terminated its employment under the sub-contract
 
GERIS HANDELSGESELLSCHAFT GMBH 
V
LES CONSTRUCTIONS INDUSTRIELLES DE LA MEDITERRANEE (CNIM) SA

Technology and Construction Court
His Honour Judge Humphrey LLoyd QC
11 February 2005
 
 
The contractor terminated the sub-contractor's employment. The sub-contractor contended that the termination was wrongful and began an adjudication in which it claimed the value of the work it had carried out up to the termination. The adjudicator found that the contractor had lawfully terminated the sub-contract and stated that it was prima facie entitled to its additional costs of completing the sub-contract works and that these costs had to be set against the cost that the contractor would have incurred had the sub-contractor completed the sub-contract works. The adjudicator went on to state that the gross value of work against which the contractor was entitled to claim damages was his assessment of the value of the work the sub-contractor had carried out up to the termination less his provisional assessment of the value of the contractor's claims for liquidated damages and back charges. The adjudicator declined to make any order in his decision for the payment to the sub-contractor of the value of the work the sub-contractor had carried out up to the termination on the ground that the contractor had a potentially good set off on the basis of its counterclaim. The adjudicator did not summarise the upshot of his consideration of the parties' claims and counterclaims at the end of his decision and did not express his determinations set out above as a sum of money owing by one party to the other. The sub-contractor applied for summary judgment in respect of the value of its work up to termination as assessed by the adjudicator.
 
Judge LLoyd declined to order summary judgment on the basis that the true interpretation of the decision was that it did not give rise to an immediate right to payment of that sum by reason of the adjudicator having concluded that the contractor had an immediate right to set off its counterclaims arising out of the termination against any amount that would otherwise have been due to the sub-contractor in respect of the value of its work and that the contractor had a realistic prospect of success in contending that that conclusion was a tenable one.