Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd, Court of Appeal - Technology and Construction Court, January 21, 2009, [2009] EWHC 73 (TCC)

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Dalkia Energy and Technical Services Ltd v Bell Group UK Ltd, Court of Appeal - Technology and Construction Court, January 21, 2009, [2009] EWHC 73 (TCC)

Neutral Citation Number: [2009] EWHC 73 (TCC)

Case No: HT-09-16

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

St. Dunstan's House,

133-137 Fetter Lane,

London, EC4A 1HD

Date: Wednesday, 21st January 2009

Before:

MR JUSTICE COULSON

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Between:

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Digital Transcription of Marten Walsh Cherer Ltd.,

12-14 New Fetter Lane, London EC4A 1AG

Telephone No: 020 7936 6000. Fax No: 020 7427 0093

Email: info@martenwalshcherer.com

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MR CALUM LAMONT (instructed by Anne-Marie Porisse, of the Claimant's Legal Dept) appeared for the Claimant

MR MICHAEL BLACK QC (instructed by Nabarro LLP) appeared for the Defendant

Hearing Dates: 19th and 20th January 2009

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JudgmentMR JUSTICE COULSON:

A. BACKGROUND

1. This is a claim under CPR Part 8 arising out of an ongoing adjudication between the same parties. The claimant ("Dalkia") seeks a variety of declarations against the defendant ("Bell") relating to the terms of the contract agreed between the parties and the alleged lack of jurisdiction on the part of the adjudicator. Many of the points taken by Dalkia are unashamedly technical and devoid of any obvious merit, but that does not mean that they can be peremptorily dismissed. The courts have repeatedly made it clear that, because of the potentially draconian effects of the summary adjudication process, the parties are obliged to follow the proper procedure for appointing an adjudicator with the necessary jurisdiction to decide the dispute between them, and that failure to do so can be fatal to the validity of an entire adjudication.

2. It is agreed by the parties that, in May 2007, Dalkia subcontracted to Bell certain repair and painting works at 143 stations and 22 footbridges owned or controlled by Central Trains. The parties are agreed that this was a construction contract in writing, but they disagree over whether or not the Bell conditions of contract were incorporated into that contract.

3. In 2008 Bell sought payment of sums allegedly due under the contract, together with payment for variations. Having not received any further monies from Dalkia, they decided to commence adjudication proceedings. Following one false start, the second notice of intention to adjudicate ("the adjudication notice") was dated 8th December 2008 and delivered by post to Dalkia on 9th December 2008.

4. The same day Bell sought a nomination of the adjudicator from the RICS. Their letter was received by the RICS on 10th December. Mr Geoff Brewer was nominated on 11th December and was appointed as the adjudicator on 15th December. It is common ground that this nomination and appointment occurred by reference to Bell's stand...

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