Cases - Cowlin Construction Ltd v CFW Architects
Record details
- Name
- Cowlin Construction Ltd v CFW Architects
- Date
- [2002]; [2003]
- Citation
- EWHC 2914 TCC; BLR 241
- Legislation
- Keywords
- Adjudication - jurisdiction - jurisdiction of adjudicator - waiver - earlier adjudication - enforcement - construction contract
- Summary
-
Cowlin were appointed pursuant to a design and build contract for the rebuilding of servicemen's housing for the Ministry of Defence. CFW were appointed by Cowlin to undertake the design.
Disputes arose between Cowlin and CFW, which Cowlin referred to adjudication. The adjudicator decided that CFW should pay Cowlin the sum of £323,373.52 including VAT.
That sum remaining unpaid, these proceedings were brought by Cowlin, and an application was made for summary judgment to enforce the adjudicator's decision.
CFW defended these proceedings on the basis that the adjudicator had no jurisdiction. CFW based this argument on two grounds:
- CFW argued that there was no construction contract between the parties.
- CFW argued that there was no dispute capable of being referred to adjudication.
CFW's solicitors had initially proposed adjudication. Cowlin, accepting this invitation, and served notice of adjudication. During the course of that adjudication, CFW's solicitors had raised various jurisdictional challenges including the absence of a contract. Cowlin had also questioned the adjudicator's jurisdiction to address issues raised by a counter notice served by CFW.
In his decision, the adjudicator had set out the limit of his jurisdiction so far as he considered was agreed by the parties. This decision determined the basis of the contract upon which CFW and Cowlin were operating.
Subsequently Cowlin presented their financial claim, which was for the sum of £717,510.80. This was largely based on delay to the project, which Cowlin asserted was caused by CFW.
This claim was initially made by Cowlin on 27 February 2002. What was described as supporting documentation of the monetary claim was then supplied by Cowlin on 11 March 2002. CFW responded by asking for full details to demonstrate that they were liable for the costs.
On 4 April 2002 CFW wrote to Cowlin asking Cowlin to direct all future correspondence to their insurers.
On 12 April 2002 Cowlin wrote to CFW's insurance brokers, and on 24 April 2002 Cowlin wrote to CFW's insurance underwriters. At this time Cowlin also amended their claim by adding a further head of claim.
A meeting was held between Cowlin and loss adjusters for the underwriters on 1 May 2002.
On 3 May 2002 Cowlin wrote to the loss adjusters giving them until 17 May 2002 to make a satisfactory offer.
The loss adjusters responded on 14 May 2002, stating that in view of the various complexities of the allegations, a review of the files was taking longer than anticipated but that they would respond as soon as possible.
On 18 May 2002 Cowlin served their notice of intention to adjudicate and subsequently applied to the Royal Institute of British Architects (RIBA) for the appointment of an adjudicator.
The second adjudicator proceeded on the basis of the decision of the first adjudicator and decided that a sum of £323,373.52 should be paid to Cowlin forthwith.
The judge concluded that CFW initially accepted that the adjudicator had jurisdiction. They then changed their mind. The adjudicator ignored that jurisdictional objection.
The judge concluded that, having elected to affirm the adjudicator's jurisdiction and having expressly sought decisions by the adjudicator, and bearing in mind that CFW were at that time represented by solicitors, CFW waved its rights to object to the jurisdiction of the adjudicator. CFW could not go back on that election. Accordingly, the adjudicator had jurisdiction to decide on matters that he dealt with.
With regard to the crystallisation of the dispute, the judge reviewed the authorities and concluded that a dispute had arisen at the time of the second notice of adjudication. She concluded that by 1 May 2002 CFW had had sufficient details of Cowlin's claim for nearly eight weeks. From this information CFW should have known broadly whether they admitted some or all of Cowlin's claim or rejected it totally. Following the meeting with the loss adjusters on 1 May 2002, Cowlin afforded CFW a further two weeks for a substantive response. The judge concluded that Cowlin's demands could not be said to have been high-handed or unjustified. By the time the deadline of 17 May 2002 passed, there was undoubtedly a dispute.
Therefore, judgment was entered for Cowlin.