Midland Expressway Ltd v Carillion Construction Ltd (Part II)

The contractor was entitled to withdraw its claim for the indirect costs of a change order issued by the Ministry of Transport from the adjudication begun by the employer against the Ministry which the contractor had been joined into in order to pursue this claim
 
MIDLAND EXPRESSWAY LTD v CARILLION CONSTRUCTION LTD

Technology and Construction Court
Jackson J
13 June 2006
 
The contractual set up was that there was a concession agreement between the Ministry of Transport and the employer and a building contract between the employer and the contractor. An adjudication was begun by the employer against the Ministry of Transport concerning payment in respect of a change order issued by the Ministry under the concession agreement. The contractor served a notice of joinder under the relevant provisions of the building contract to be joined into this adjudication in order to claim its costs of the change order which in turn had been issued under the building contract (where there were provisions in the concession agreement permitting such a joinder). The adjudicator decided that there was no dispute capable of being adjudicated arising out of the contractor's claim for indirect costs resulting from the Ministry of Transport's change order.
 
Jackson J held that the contractor was entitled to withdraw its claim for the indirect costs of the change order. Whilst the right of a party in court proceedings to discontinue its claim or certain heads of claim was enshrined in and was regulated by the Civil Procedure Rules, adjudication was a very different process from litigation and the Act said nothing about whether a party in adjudication had a similar right. It was impossible to read into the Act or the Scheme any restriction prohibiting a party from withdrawing a disputed claim referred to adjudication insofar as (i) there was nothing in the Act or the Scheme that suggested that any such restriction was intended (ii) adjudication was an informal process that arrived at an interim resolution of disputes pending final determination by court or arbitration proceedings and it would be contrary to the statutory purpose to prohibit a party from withdrawing from such a process any claim that it did not wish to pursue and (iii) if there was such a restriction, it would have the bizarre consequence that parties would be forced to press on with bad claims in adjudication, thus leading to a wastage of costs and resources on the part of all parties. In addition the relevant contractual provisions in the concession agreement and the building contract did not expressly prohibit a party from withdrawing a claim from adjudication and there was no basis for implying such a restriction.
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