AMD Environmental Ltd v Cumberland Construction Company Ltd (TCC - 15.2.2016)

AMD Environmental Ltd v Cumberland Construction Company Ltd (TCC - 15.2.2016)

The contractor’s contention that the final account dispute referred by the sub-contractor to adjudication had not crystallised by the time it served its notice of adjudication should be rejected.
 
AMD ENVIRONMENTAL LTD V CUMBERLAND CONSTRUCTION COMPANY LTD
TECHNOLOGY AND CONSTRUCTION COURT
COULSON J
15TH FEBRUARY 2016

 

The sub-contractor claimed a final account sum which the contractor rejected. Whilst there were numerous exchanges between the parties in respect of the claim, the issues were not resolved. The sub-contractor issued a notice of adjudication. The adjudicator awarded the sub-contractor a specified sum which the contractor did not pay.

 

The contractor submitted that (i) It repeatedly asked the sub-contractor for particulars of certain elements of the claim during this lengthy eight month period of exchanges but those particulars were not always forthcoming and (ii) Particulars were provided in at least one important respect in answer to the adjudicator's request which the sub-contractor had previously failed to provide in answer to a similar request during that period. Coulson J rejected this submission on the basis that it was not necessary to decide these factual issues on the basis that the alleged absence of particularisation is not a proper ground for resisting enforcement of an adjudicator's decision because (i) It is wrong in principle to suggest that a dispute has not arisen until every last particular of every last element of the claim has been provided and (ii) When a contractor or a sub-contractor makes a claim, it is for the paying party to evaluate that claim promptly and to form a view as to its likely valuation, whatever points may arise as to particularisation.

 

Coulson J, in rejecting the contractor’s contention that the final account dispute had not crystallised, stated that (i) The parties’ detailed too-ing and fro-ing in correspondence for some eight months from the time the claim was first intimated until the parties' respective final positions were clearly set out in the email exchanges was ample evidence of a dispute having crystallised and (ii) The contractor’s valuation of the sub-contractor's account in a negative sum at the beginning of this period was a position and figure from which it never really moved in the following eight months.

 

The alleged absence of particularisation of the sub-contractor’s claim throughout the period of negotiations until the adjudicator requested and was provided with particulars was not a proper ground for resisting enforcement of an adjudicator's decision and did not establish that this was not an ordinary case by reason of the sub-contractor’s claim being "so nebulous and ill-defined".

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