Case 3: Hochtief Solutions AG and others v Maspero Elevatori S.p.A. [2021] CSIH 19 (15 February 2021) (Lord President, Lord Menzies, Lord Woolman)
"construction operations”. But Parties chose OptionW1 providing for adjudication even though the Act did not apply. Adjudication 1: The adjudicator decided the gross value due to Optimus was less than paid but that he had no power to order repayment of the excess to Croda.
On enforcement of an adjudicator’s decision Lord Clark held:
Adjudication 2: Croda asked for repayment of the overpayment and succeeded.
(i) the adjudicator had not exceeded his jurisdiction in deciding that a July agreement was a variation of the subcontract not a new contract; (ii) he had not failed to exhaust his jurisdiction: he had taken into account Maspero’s contentions before concluding that certain design costs were covered by a clause in the determination provision of the subcontract; (iii) Maspero in merely “hinting at a challenge” had not made an appropriate and clear reservation “at the outset” such as was required and had therefore acceded to the adjudicator’s jurisdiction. The Inner House rejected Maspero’s appeal adding that Scots law like English law required a clear and timely challenge. Case 4: Croda Europe Ltd v Optimus Services Ltd [2021] EWHC 332 (TCC) (19 February 2021) HHJ Roger ter Haar QC Under an NEC3 Professional Services Contract (PSC) Optimus agreed to provide services for the expansion of Croda’s chemical work. The Act did not apply – the agreement was not one for
Optimus refused to pay and Croda applied for summary judgment. Optimus said the adjudicator’s powers to “review and revise any action or inaction” under Option W1.3(5), did not extend to finding that the value of Optimus’s services was less than had been paid and to order repayment.
Held:
1.
No justification for such a limitation. The power under Option W1.3(5) should be construed consistently with the like power under Option W2.3(4) which was unlimited and allowed a party to refer any dispute. It would be improbable and uncommercial to construe W1.3(5) as being a closed list of powers. Adjudicator was entitled to create a negative valuation and payment; even if that were untrue, it would be a contractual interpretation open to the adjudicator and therefore not a ground to resist enforcement. Optimus had elected to treat the decision as binding and had waived its right to challenge enforcement on jurisdictional grounds, by writing to the adjudicator confirming payment of his fees and asking him to correct his decision under the ‘slip rule’, without reserving its right to raise a jurisdictional challenge.
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