Imperial Chemical Industries Ltd v Merit Merrell Technology Ltd (TCC - 23.10.2015)
IMPERIAL CHEMICAL INDUSTRIES LTD V MERIT MERRELL TECHNOLOGY LTD
TECHNOLOGY AND CONSTRUCTION COURT
23RD OCTOBER 2015
The adjudicator decided that (i) The employer was entitled to the documents listed in appendix 1 to the decision but (ii) No order should be made for the delivery up of those documents by the contractor to the employer. Edwards-Stuart J held that (i) A declaration should be made to enforce the adjudicator’s decision, which declared that the employer was entitled to certain documents, was valid and binding (which declaration should stand unless and until it was overruled by a decision of the court on the merits) but (ii) No order by way of enforcing that decision should be made requiring the contractor to deliver up those documents when the adjudicator declined to make such an order.
The sparse information given in relation to the employer's need for the documents together with the dispute about the reason for the inadequacy of some of the welds meant that the court was not in a position to formulate an order for delivery up that would fairly reflect the adjudicator's declaration of entitlement, even if it would otherwise be appropriate to do so. Even if it were possible to draw up such an order identifying the documents really needed by the employer, to make such an order would be going further than a mere declaration of entitlement would warrant.
This was an application for summary judgment by the employer by way of enforcing the adjudicator's decision with the result that the relief should be refused unless the position was very clear, particularly if the relief sought was for specific performance or a mandatory injunction to deliver up documents. The only way in which the position might be preserved and effect thereby given to the adjudicator's declaration of entitlement would be by way of an interim injunction requiring the contractor to preserve the documents until further order so that relevant documents, if sufficiently identified, could be the subject of a more focused application for delivery up. However, the employer did not make such an application and it would therefore not be appropriate to grant relief in that form on this application.