Assesmont Ltd v Brookvex IMS Ltd, Court of Appeal - Technology and Construction Court, August 29, 2018, [2018] EWHC 2629 (TCC)

Resolution Date:August 29, 2018
Issuing Organization:Technology and Construction Court
Actores:Assesmont Ltd v Brookvex IMS Ltd

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No. HT-2018-000198

Neutral Citation Number: [2018] EWHC 2629 (TCC)






Royal Courts of Justice

Wednesday, 29 August 2018



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B E T W E E N :


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MR FRAMPTON (instructed by Birkett Long LLP) appeared on behalf of the Claimant.

MR TOWERS (instructed by Wright Hassall LLP) appeared on behalf of the Defendant.

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1 This is an application for summary judgment to enforce the decision of an adjudicator, made on 25 June 2018, that the defendant, Brookvex, pay to the claimant, Assesmont, the sum of £59,763.11 plus VAT.

2 It is not in issue that there was a contract between the parties for the carrying out of works at a property known as Apollo House in Croydon. The contract was formed by a quotation from Assesmont to Brookvex on 29 November 2017 to carry out a steel work to over-clad four columns. The total sum in the quotation was approximately £17,000 plus VAT. The quotation contained, amongst other things, the identification of a day works rate at £390 per person per day including an eight-hour working day on site, travel time and expenses, tools and equipment.

3 There was a clause in the quotation clause 14 which stated that installation costs were based on normal weekday site working hours being Monday to Friday between 7.30 and 17.30. If restricted working hours on site reduced those working hours, there was provision for additional payment. The clause then provided:

``If Saturday works required, please allow an additional £17.50 per hour, Sunday works an additional £35.00 per hour''.

4 The quotation was accepted by Brookvex. It is not in issue that that formed a contract and that the Scheme applied to that contract. In the event, Assesmont carried out more work than was expressly provided for in the quotation.

5 On 27 February 2018, Assesmont submitted its final account application in the sum of £71,716.33. The response of Brookvex to that was an email from Mr Harrald, the Operations Director of Brookvex writing to a Mr Hiscott of Assesmont in the following terms:

``Please can you send me the information requested at the meeting and in 2 previous emails as we are unable to work out the costs you are claiming for the lower columns [which formed part of the additional work]. We still require the original day sheets as you have previously sent copies plus the operatives need to be named on the Assesmont day work spreadsheet''.

He said that he attached a previous email and he asked:

``Can you also provide the qualifications for all the operatives you claim were on site as over half of the sheets you have sent which we do not accept have a number of operatives only''.

That request for further information was the response to the final account. There was no pay less notice

The Adjudication

6 Assesmont gave notice of intention to refer on 17 May 2018. Brookvex participated in the adjudication without any reservation as to the jurisdiction of the adjudicator. In its response in the adjudication, Brookvex's case was that there were two sets of work, ``the upper works'' which were the subject matter of the quotation, and ``the lower works'' for which no quotation had ever been provided despite Brookvex's request. Brookvex said that the lower works had, therefore, been carried out without a price being agreed and that Assesmont was entitled to payment on a quantum meruit basis. They asked the adjudicator either to give directions for the appointment of a surveyor to value the works or to do so himself. That response did not take account of the arguments as to the payment notice and pay less notice (or lack of one). The adjudicator did not take the course asked of him but decided the dispute before him solely on the basis of the notices or lack of them.

The jurisdictional issues

7 In these proceedings, Brookvex has served a defence and counterclaim, dated 6 August 2018, and three witness statements: one from Mr Michael Davidson, Director and CEO of Brookvex; one from Mr Graham Sinclair, Construction Site Manager; and one from Mr Gary Harrald. Those witness statements were also signed on 6 August 2018.

8 The argument now advanced in the defence and counterclaim and in those statements is that there were not merely two sets of work which ought to have been valued differently, but that there were two distinct contracts and that there ought, therefore, to have been two distinct payment applications. That argument may have developed into an argument that the adjudicator lacked jurisdiction under the second contract for the lower works.

9 The adjudicator's decision was based on the absence of a pay less notice and Brookvex's position now appeared to be that there did not need to be one in respect of the lower works because there was no valid payment notice under the separate contract for these works. However, no such jurisdictional objection was taken at the time of adjudication. On the contrary, the adjudicator had been asked to deal with the lower works. It is well established that a jurisdictional objection must be taken promptly and it is far too late to raise these issues on enforcement. Indeed, these matters have not, in the event, been pursued on the application before me today.

10 Both parties recognise that there are some limited instances where on enforcement the court may decide discrete and short points which go to the substance of the adjudicator's decision and that such points may include those where there is an issue of whether a document is, for example, a valid pay less notice. The purpose of taking that approach is to avoid a multiplicity of proceedings where the point is of a nature that could be raised in Part 8 proceedings and dealt with shortly.

11 There was or had been something of a flowering of cases in which the court was invited to reach such decisions on the substance of an adjudicator's decision on enforcement proceedings. In Hutton v Wilson [2017] EWHC 517 (TCC), Coulson J. as he then was, took the opportunity to set down some principles or at least to revisit and...

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