Wsp Cel Ltd V Dalkia Utilities Services Plc
Technology and Construction Court
28th August 2012
The Adjudication Table in the NEC 3 Professional Services Contract applies when a dispute is purely contractual in nature because the nature of the work being performed by the consultant does not constitute a “construction operation” within the meaning of the Construction Act. This means that neither party has a statutory right to adjudication when a dispute may be referred “at any time”.
The Adjudication Table sets out the procedure to be adopted when referring a dispute to adjudication in such a “contractual” adjudication. There are four grounds or categories of dispute that may be referred. Grounds 1 and 2 are "An action of the Employer" and "The Employer not having taken an action". Ground 4 is "Any other matter". A dispute falling into a ground 1 category must be referred "between two and four weeks after the Consultant's notification of the dispute to the Employer". In contrast a dispute falling into a ground 1 category need only be referred "between two and four weeks after notification of the dispute to the other Party."
Any adjudication in the instant case was “contractual”. The consultant sought to refer the many disputed claims in its final account. One of the issues for determination was whether the consultant could take advantage of the less stringent time limit for referring a dispute on the basis that its disputes fell within ground 4 as opposed to within grounds 1 and 2. The consultant contended that in order to find that its entitlement to refer a dispute, it had to be incapable of coming within the definition of ground 4 as "Any other matter". “Any other matter” was a broad definition which was capable of applying to all the claims which were referred for determination in the dispute arising out of the final account and wide enough to include a matter which is formed from a composite or combination of some or all of grounds 1, 2 and 3.
Ramsey J rejected this contention and held that the consultant’s disputed final account claims fell within grounds 1 and 2 only. The claims do not change to become "Any other matter" just because they were included in the final account. If the claims came within grounds 1 and 2, they remained there. Ground 4 only dealt with disputes not arising from grounds 1 or 2 (or where relevant ground 3).