1) Construction Operations: Engie Fabricom v MW High Tech Projects [2020] EWHC 1626 (TCC) The TCC held that the primary activity at a fluidised bed gasification plant was power generation rather than waste disposal. Therefore works carried out under a sub- contract between the parties to the dispute were not construction operations within the meaning of section 105(2)(c) of the Act.
[6] Jackson J in AMEC v Secretary of State for Transport [2004] EWHC 2339 (TCC), as refined in Cantillon v Urvasco [2008] EWHC 282 (TCC). [7] Walter Lilly v Mackay [2012] EWHC 1773 (TCC). The adjudicator rejected the challenge and proceeded with the reference and decided that BBK was entitled to the extension of time claimed. MWH then made an application under Part 8 CPR to determine, amongst other issues, whether the dispute decided by the adjudicator had crystallised. In July 2019 BBK sent MWH an expert’s report (the Goodman Report) that included a critical path analysis and demanded a response within 7 days. BBK referred its extension of time claims to adjudication. MWH challenged the adjudicator’s jurisdiction on the grounds that the claims and material set out in the Goodman report were new or different from those in the five notices meaning that the 16 week period had started again and the referral was premature. Looking at clauses 2.17 and 2.18 of the sub- contract, O’Farrell J. said that when a party provided additional and supplementary material that it was possible that it might restart the 16- week period in clause 2.18, but it was not inevitable. It depended whether the additional material made a material change to the claim as originally notified. In deciding that question it was important the court should construe the provisions in a sensible and commercial way. The Goodman report was not intended to be a fresh notification. It was not materially different to the claims previously advanced but was expert analysis in support of those claims. MWH had failed to notify BBK of its decision in respect of each delay notice within the 16-week period running from the last notice. The adjudicator had jurisdiction.
There was no statutory right of adjudication.
2) Dispute - Crystallisation: MW High Tech Projects UK Ltd v Balfour Beatty Kilpatrick LTD [2020] EWHC 1413, (TCC) O'Farrell J. Before a party can refer a claim to adjudication there must be a crystallised dispute. Whilst the question will be fact specific, the courts have laid down guidance as to when it can be said that crystallisation has occurred[6]. When the question is in the context of a claim based on contractual notices, the court is entitled to take into account the parties' knowledge and understanding of the material events giving rise to those notices[7]. In this case, the parties had entered into a JCT Design and Build Sub-contract, 2011 Edition. Between March 2018 and February 2019, the defendant, (BBK), sought extensions of time and served five notices of delay under clause 2.17 of the sub-contract. The claimant, (MWH), did not respond to those notices or request further particulars within the 16 weeks allowed by clause 2.18 of the sub-contract.
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