5) Natural Justice – wrongful exclusion of defences Global Switch Estates Ltd v Sudlows Ltd [2020] EWHC 3314 (TCC) O’Farrell J This was an application for summary judgment by GSEL for just over £5 million plus costs awarded to them in what had been the fourth adjudication between the parties. The disputes had arisen out of a project to fit out and upgrade GSEL's specialist data centre housed in the listed former Financial Times print works building at East India Dock House, East India Dock Road, London. Sudlows had been engaged by GSEL to carry out the works pursuant to a JCT Design and Build 2011 form of contract, with amendments, dated 22 December 2017 ("the Contract"). On 15 May 2020 GSEL commenced the fourth adjudication, the subject of these proceedings. Mr Nigel Davies was appointed as the adjudicator. The notice of adjudication sought a decision as to the true value of parts of Interim Application 27 and that Sudlows should pay GSEL the sum of £6,831,163.03 or such other amount as the adjudicator determined. The notice defined the dispute as asking the Adjudicator to open up, review and revise – and determine the true value of – certain parts of Interim Applications numbered 27 for the Section 1 and Section 2 Works dated 31 March 2020 ("IA27"). The parts of Interim Applications 27 and the Payment Notices to be opened up, reviewed, and revised by the Adjudicator related to the value of the Contract Works; the value of Changes/variations; and the value of loss and/or expense (in relation to delay for which extensions of time have been awarded,
Or if there was a failure to address an issue, then applying English authorities, that failure had to be deliberate not inadvertent and there was no deliberate failure in this case. Failure to exhaust jurisdiction On the question whether or not such a failure had to be deliberate, Lord Tyre reviewed both English and Scottish authorities[13]. He preferred the view expressed by Stuart Smith J in KNN[14] to the narrower view of Jefford J. in RGB[15]. His opinion was reinforced by two Scottish authorities[16]. He decided that not every failure amounting to a reason not to enforce a decision has to be deliberate as opposed to inadvertent. There was no clear distinction between deliberate and inadvertent failure to address critical issues in Scottish law. Rather the touchstone was whether the adjudicator has effectively addressed the major issues raised on either side which was consistent with the earlier decisions of the Outer House. The dispute before the adjudicator raised four major issues the second of which was “how were the works to be measured in terms of CESMM3?” which was not addressed at all. It was clear it was a critical issue raised in both the Response and Rejoinder and it amounted to a failure to exhaust jurisdiction and the decision could not be enforced. It was not necessary to characterise the failure as deliberate though of he was wrong about that Lord Tyre would have said it could fairly be so characterised. There was no need to address the alternative ground of inadequate reasons. A possible issue of severability did not arise.
[13] Pilon v Breyer [2010] BLR 452; AMECGroup Ltd v TWUL [2010] EWHC 419; Dickie &Moore Ltd [2019] SCOH 87 [14] KNNCoburn LLP v GDHoldings Ltd [2013] EWHC 2879 [15] RGBP&C Ltd v Victory House [2019] EWHC 1188 [16] Field Systems Design Ltd vMWHigh Tech Projects UK Ltd [2020] CSOH 17; Hochtief (see Supra)
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