Civil Engineering Reference
In-Depth Information
The position was developed further in
Cantillon Ltd
v
.UrvascoLtd
(2008). Urvasco
engaged Cantillon to carry out demolition, piling and other works. Disputes arose
which were dealt with in adjudication. These concerned Cantillon's claims for exten-
sion of time and loss and expense. Sums were awarded to Cantillon by the adjudicator
but Urvasco refused to pay, claiming, among other things, that the adjudicator had
no jurisdiction in relation to Cantillon's claim for a 13-week extension of time. It was
argued that Cantillon had claimed for a specific 13-week period and associated costs.
Giventhis,Urvascoarguedthattheadjudicatordidnothavejurisdictiontoallow
costs for a different 13-week period.
JusticeAkenheadconsideredtheissueofhowandwhenadisputecanarise.He
considered that courts should not adopt an overly legalistic analysis of what the dis-
pute between the parties is. It cannot be said, he noted, that this is necessarily defined
or limited to the evidence or arguments submitted by either party to each other before
the referral to adjudication. It was said that the responding party can put forward any
defence in the adjudication, whether argued previously or not. It followed from that,
therefore, that the adjudicator could rule not only on that defence but also on the ram-
ifications of that defence in so far as it impacts upon the fundamental dispute. Where
partiesputforwardarguments,theadjudicatorcouldnotbesaidtobegoingofona
frolic of his own if he addressed these. Accordingly, in this case, the adjudicator had
considered the dispute to be related to a claim for loss and expense for 13 weeks due
to a piling variation, not loss and expense for a specific 13-week period. Urvasco's
defence had been that the losses claimed could not be recovered because they related
to a later period. That was effectively an acceptance that there were losses and the
judge found that the adjudicator could deal with that issue, it having been raised.
he
Cantillon
case was followed in
Quartzelec Limited
v
.HoneywellControlSys-
tems Limited
(2008). Quartzelec argued that a defence raised by Honeywell during
thecourseoftheadjudication,butwhichhadnotbeenraisedpriortotheNoticeof
Adjudication, could not form part of the dispute which was referred to the adjudica-
tor. His Honour Judge Davies agreed with the assessment in
Cantillon
, considering
that, where the dispute referred to adjudication was one involving a claim to be paid
money, it was difficult to see why a respondent should not be entitled to raise any
defence open to him to defend himself against that claim, irrespective of whether the
defence had been raised prior to the adjudication - subject, of course, to considera-
tions of natural justice. It was held that, not only did the adjudicator have jurisdiction
to consider such a defence, moreover, if he failed to do so, he would not properly have
been performing the task he was appointed to do. He would not have been acting in
accordance with natural justice, as the respondent would not have been heard on all
his defences put forward.
he mere fact that correspondence issued prior to an adjudication is marked 'with-
out prejudice' may not prevent a dispute crystallizing for the purposes of adjudication.
In
RWE Npower plc
v.
Alstom Power Ltd
(2009) parties had entered into three con-
tracts for the repair of boilers around the same time which incorporated the Scheme
for Construction Contracts. Three adjudications took place with the third adjudica-
tion dealing with early claims being referred to in letters marked without prejudice.
A subsequent 'open' claim was made by RWE and negotiated by the parties. Alstom
attempted to argue that RWE could not prove that a dispute had crystallized because
