4) Part 8 Proceedings – Utility Of: ISG Construction Ltd v English Architectural Glazing Ltd [2019] EWHC 3482 [10] The claimant ISG sought various declarations in Part 8 proceedings arising from its dissatisfaction with the outcome of an adjudication, and asked the court to make a final determination of: (a) certain discrete substantive issues decided by the adjudicator; and/or (b) the ambit and effect of the adjudicator's decision. Discrete issues The claimant argued that it was a suitable case to invite the court to determine discrete substantive issues because they raised short points of contract interpretation and did not involve substantial issues of fact; and the adjudicator's decision on these points was wrong and could finally and conveniently be determined to be so in the Part 8 proceedings. Ambit and effect of the decision Here the claimant argued that if the court was not prepared to answer the discrete substantive issues, or did not answer them in its favour, then it was still important and would assist both of the parties or a future adjudicator, to know the ambit and effect of the adjudicator's decision. Argument This was not a case where the claimant was seeking to invoke Part 8 jurisdiction to avoid paying the sum awarded to the defendant. It had already paid that sum in full (being £137,434.53 for interim payment application number 35). Its real complaint was that the adjudicator decided that it could not rely upon what it contended was its contractually binding bona fide estimate in the sum of £3,183,000 for loss and damage it claimed to have suffered due to the defendant's breach in
failing to complete its subcontract works by the contract completion date (as extended). It argued that such decision would be shown to be demonstrably wrong; and in any event it needed to know the ambit and effect of that decision to decide whether to seek to enforce its claim in any further adjudication. The defendant's position was that the proper determination of the issues raised by the first three of the declarations required the resolution of issues of fact as well as law such that they could not be disposed of in Part 8 proceedings. Insofar as the issues raised in two other declarations did not require resolution of issues of fact, then they ought to be answered, if at all, in its favour. Finally, no sufficient reason had been shown for inviting the court to determine the ambit and effect of the adjudicator's decision at this stage. Decision The law on the use of Part 8 was not in dispute. The court should refrain from deciding issues unless satisfied it could make a fair determination at that stage and also that there was practical utility in doing so. The court declined to make any of the declarations sought, including (and despite the agreement of the parties) as to the ambit and effect of the decision. Although the decision was wholly dependent on the particular facts of the case, the following points are of noteworthy. The claimant had invited the court to rule on two issues which were before the adjudicator and which, if answered in its favour, demonstrated that the ultimate decision of the adjudicator was wrong. The first appeared at first blush, to be a question of interpretation of clause 9(8) of the subcontract. That claimant said that if the defendant failed to give notifications required under clauses 9(4)
[11] [HHJ Stephen Davies, judgment 16 December 2019
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