Savoye and Savoye Ltd v Spicers Ltd (TCC - 15.1.2015)
The costs recoverable by the contractor in respect of its successful proceedings enforcing the adjudicators award should be assessed on the standard basis rather than on an indemnity basis
15 January, 2015
SAVOYE AND SAVOYE LTD v SPICERS LTD
Technology and Construction Court
15th January 2015
The case was a "one issue" case, that issue being whether the work done and to be done by the contractor amounted to "construction operations" as defined in section 105 of the Construction Act in the context of the facts and the contract between the parties. The issue broke down still further into a consideration of whether as a matter of fact and degree the conveyor system (installed by the contractor) as a whole could be said to "form part of the land" as called for in section 105(1)(a) to (c). The contractor sought to recover its costs of the enforcement proceedings on an indemnity basis saying that the employer had acted unreasonably to a high degree in raising an unmeritorious defence and/or jurisdictional challenge and subsequently maintaining such a challenge to the adjudicator's decision on the basis of evidence which turned out to be misleading.
Akenhead J held that the contractor’s costs should be assessed on a standard basis rather than on an indemnity basis. What one is seeking to find is whether or not the employer’s conduct was out of the norm such that it could be considered as unreasonable to a high degree. Apart from significant differing areas of emphasis between the parties on the precise legal tests and criteria to apply, there were differences between the parties on the facts. The primary underlying issue involved a question of fact and degree, namely the extent to which, looked at overall, the conveyor system to be installed by the contractor could or could not be considered as forming part of the land.
It was not unreasonable, let alone out of the norm, for the employer to seek to argue that, looked at overall and as a matter of fact and degree, the conveyor system did not or was not to form part of the land. Whilst a representative of the employer made several factual assertions which were either misleading or at least wrong, he did not give the impression in giving evidence that he was dishonest or had been consciously trying to mislead and it only possible during the site visit and with the assistance of the subsequent oral evidence at the trial to form a clear view as to whether overall the conveyor system was to form part of the land.