JG Walker Groundworks Ltd v Priory Homes (East) Ltd (TCC - 6.12.2013)
The adjudicator acted within his jurisdiction when he took into account the value of the additional work that the contractor said it had carried out when assessing what sum was due to it following its issue of its payment application.
6 December, 2013
JG WALKER GROUNDWORKS LTD v PRIORY HOMES (EAST) LTD
Technology and Construction Court
6th December 2013
The adjudicator awarded the contractor the sum it claimed in respect of its payment application for the value of work and variations. The employer contended that the adjudicator did not have jurisdiction to make his award because he only had jurisdiction to determine what was due under "the contract", did not have jurisdiction to determine what was due under the “varied contract and should have ignored any variations (whether agreed or not). The employer submitted in support of this contention that (i) The definition of the contract in the notice of referral, in referring to the originally agreed scope of works, was very precise and did not include what was due under the "varied contract" (ii) This definition was picked up and adopted by the adjudicator at various points in his decision in which he referred to “the contract” but did not refer to the contract as varied and (iii) Whilst the notice of adjudication referred under the paragraph headed “contract” to agreed variations, this had to be read with and qualified by the definition of "the contract" in the notice of referral.
Edwards-Stuart J rejected the employer’s contention and held that the adjudicator acted within his jurisdiction when he took into account the value of the additional work that the contractor said it had carried out when assessing what sum was due to it following its issue of its payment application.
Whilst there might be scope in the case of ambiguity for reading the notice of adjudication (which made reference variations) in the light of the notice of referral (which made no such reference in describing the contract), it is the notice of adjudication, and not the referral notice, which defines the scope of the referral (see paragraph 1 of the Scheme for Construction Contracts) and there was no ambiguity in this definition of the contract which plainly included the variations. The fact that the contract was expressly made subject to re-measurement suggested that the parties anticipated that there would be variations to the scope of the works over the course of the contract. The adjudicator stated in his decision that he had studied the “interim valuation” and must have appreciated that it included claims for additional work because it said so on its face and the list of additional work was attached to it.