Orange EBS Ltd v ABB Ltd
Technology and Construction Court
Her Honour Judge Frances Kirkham
22 May 2003
The contractor complained about defects in the sub-contract works and the sub-contractor’s alleged abandonment of the site. The sub-contractor eventually served a final account submission containing claims as to what it was entitled to under the contract up to the time of termination. The sub-contractor did not wait for the period of time required by the contractor in its letter of response to the service of the final account submission to expire before starting adjudication proceedings. The contractor contended that the adjudicator’s decisions in favour of the sub-contractor were made without jurisdiction because the contractor should have had time to form a view as to the submission.
Judge Kirkham held that there was a “dispute” for adjudication purposes. Thayne Forbes J in Beck Peppiatt v Norwest Holst Construction (2003) stated that the law with regard to what constituted a “dispute” for the purposes of adjudication was satisfactorily stated by Judge LLoyd in Sindall v Solland (2001) as being where it was clear that a point had emerged from the process of discussion or negotiation which had ended where there was something which needed to be decided. The meaning of “dispute” adopted by the Court of Appeal in Halki was that there was a dispute once money was claimed unless and until the defendant admitted that the sum was due and payable.
Applying the simple test in Halki of there being a dispute once money was claimed unless and until the defendant admitted that the sum was due and payable, a dispute had arisen by the time the sub-contractor began the adjudication proceedings insofar as the contractor had not admitted the claims in the final account submission and had not paid them. Applying the test in Sindall v Solland, on balance the process of discussion or negotiation had ended and there was something which needed to be decided by the time the sub-contractor began the adjudication proceedings (ie the sub-contractor’s final account submission).
Judge Kirkham stated that it was not the case that London TCC judges had interpreted “dispute” for the purposes of adjudication in a restrictive manner (by requiring a reasonable period of time for a claim to be considered before it could be said to have crystallised into a dispute) which was inconsistent with the Court of Appeal’s decision in Halki.