4) Jurisdiction – construction contract – existence of contract – natural justice – delay in enforcement – Cubex (UK) Ltd v Balfour Beatty Group Ltd [2021] EWHC 3445 (TCC) The claimant (Cubex) alleged that the defendant Balfour Beatty Group Ltd (BBGL) retained them to design and manufacture doors for installation at Woolwich station. Cubex claimed that BBGL had then repudiated the subcontract by placing the order for the doors with a third party and they took the claim to adjudication. The adjudicator found in favour of Cubex awarding then £400,000 in his decision February 2017. In September 2019, some two and half years after the decision, Cubex commended enforcement proceedings.
(c) The adjudicator was in material breach of the rules of natural justice having reached his decision on the basis of reasons that neither party had advanced and indeed on his finding as to a ‘version’ of the subcontract that was not that relied on by Cubex. (2) The court in its discretion should decline to enforce the award due to Cubex’s inordinate delay in raising the enforcement proceedings.
Issues and judgment
Was the design and supply of doors at a station a ‘construction contract for the purpose of the Act?
This in turn depended on whether the works were ‘construction operations’ within the meaning of s.105(2) of the Act. BBGL argued and the court accepted that the works amounted to the manufacture and delivery to site of doors which fell within the excluded operation in s.105(2)(i) or (ii), i.e. the manufacture or delivery to site of building or engineering components or equipment, or materials, plant or machinery. The adjudicator had found that the works included for design and were therefore construction operations. The court referred to s. 104(2) noting that contracts for design were construction contracts, provided the design services related to construction operations. The adjudicator was therefore incorrect as the supply of doors was not of itself a construction operation (s.105(2)). If the contract had been a hybrid contract such that the design was for construction operations but the supply was not, the decision would still have been made without jurisdiction as the decision encompassed all of the works.
BBGL resisted on two grounds:
(1) The adjudicator lacked jurisdiction
(a) Any subcontract was not one for “construction operations” within the meaning of the Act because although it was for design works, those works did not relate to construction operations; and/or (b) In any event no concluded subcontract had come into existence and in deciding the matter on the basis of two different versions of the subcontract the adjudicator had purported to decide more than one dispute; and/or
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