Morgan Sindall Construction and Infrastructure Ltd
v Westcrowns Contracting Services Ltd10
This was a case which contained a number of broad challenges to the adjudicator’s
decision. Lord Clark held that these criticisms were not well-founded.
Morgan Sindall obtained an adjudicator’s decision in its favour of the payment
of £430,654.44 plus VAT. Westcrowns sought to avoid payment on a variety of
grounds:
1. The adjudicator acted outside his jurisdiction because he decided two disputes.
The dispute referred was whether there was a Defect in the floor (from either of two possible
causes), the Defect being described as “bubbling and blistering” and if so, who was responsible
for it. A review of the pre-action correspondence and the adjudication documents, lead
to the conclusion that this was the dispute that was referred to adjudication.
Westcrowns nevertheless argued there was not one dispute but two because the claim concerned both
“notified” and “non-notified” defects, different areas of the floor, and there were claims
for damages for breach of contract and in the alternative damages at common law. Lord Clark
concluded that the dispute that was referred to adjudication, referred to the whole floor, and a
claim for damages for breach of contract on that basis and it would be artificial to characterise
it as two disputes.
2. Second, did the adjudicator leave out of account a relevant consideration? It was said by
Westcrowns that the adjudicator failed to consider important parts of its submissions and relevant
materials, including not giving sufficient weight to “unchallenged” witness statement
evidence and failing to take account of observations made on inspection and written
submissions. It could not be said that the absence of separate consideration of three
particular points in the adjudicator’s decision was material or caused substantial
prejudice to the Defendant.
3. Third, did the adjudicator act in a way which was procedurally unfair? Held for the
same reasons as in (2) above, the adjudicator did not act in a way which was procedurally unfair.
4. Fourth, did the adjudicator fail to exhaust his jurisdiction and to give reasons
or intelligible reasons for his decision? It was suggested by Westcrowns that the adjudicator had
failed to give any reasons for rejecting their submissions over the sum of £72,000 said to have
been wrongly withheld. The adjudicator did not refer to this issue in his decision. The sum
consisted of four components. The Court decided it was clear from other conclusions that the
adjudicator did not consider the first component to have fallen due for payment. Components two,
three and four were not within the adjudicator’s jurisdiction or were not sufficiently ventilated
anyway. No proper case was made out. In reality all that was omitted from the decision was a
comment that the adjudicator could not decide upon these issues. A failure to give effect to a
deduction to a lesser sum of £983.06 was not material and caused no substantial prejudice.
There was no failure to exhaust his jurisdiction or a failure to give reasons on that matter.
Lord Clark also found that a reservation of jurisdictional rights made during the
adjudication by Westcrowns (after the rejoinder was served) was different to the issue raised
before the Court. As the point had not been raised in the adjudication, when it could have been, it
could not now be raised before the Court.
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