BDW Trading Ltd v Ardmore Construction Ltd

Background:

This case involves a summary judgment application by the Claimant, BDW, seeking to enforce an adjudication decision (the "Decision") rendered by Mr. John Riches (the "Adjudicator") on September 17, 2024, which was corrected on September 18, 2024. The Decision orders the Defendant, Ardmore, to pay £14,454,914.45 in damages and £84,329.00 for the Adjudicator's costs and expenses. The Adjudicator found that Ardmore breached its obligations under a construction contract and was also liable under the Defective Premises Act 1972 (the "DPA 1972").

Key Facts:

• The construction contract sum was £22,593,000.
• The Claimant alleged that Ardmore used an inappropriate cladding system and failed to install horizontal fire barriers, thus breaching its duty under the DPA 1972 and exposing BDW to substantial risk of loss.
• Ardmore contested the enforcement of the Decision, raising four grounds of objection:

1. The dispute had not crystallized (Ground 1).

2. The Adjudicator lacked jurisdiction to determine a tortious claim under the DPA 1972 (Ground 2).

3. The adjudication process was inherently unfair due to an imbalance in documentation (Ground 3).

4. The Adjudicator failed to consider a material defense regarding the allegation of deliberate concealment (Ground 4).

Procedural History:

• On March 28, 2024, Ardmore challenged the Adjudicator's jurisdiction, arguing that there was no proper dispute.
• The Adjudicator issued a decision on jurisdiction on April 4, 2024, rejecting Ardmore's challenge.
• Following Ardmore's notification of intent to resist enforcement, BDW filed a claim for enforcement on October 1, 2024, accompanied by a witness statement from Mr. Mark Pritchard of Howard Kennedy LLP.

Legal Issues:

1.

Crystallization of Dispute (Ground 1):

Ardmore argued that the dispute had not crystallized in time for adjudication. The court found this argument unpersuasive, noting that Ardmore did not undertake an investigation into liability.

2.

Jurisdiction under DPA 1972 (Ground 2):

Ardmore contended that the Adjudicator lacked jurisdiction to adjudicate claims under the DPA 1972. The court held that the Adjudicator had jurisdiction, referencing the principles established in Fiona Trust and subsequent case law that support the interpretation of disputes "under the contract" to include statutory claims.

3.

Natural Justice and Fairness (Ground 3):

Ardmore claimed the adjudication process was unfair due to a lack of contemporaneous documentation. The court found that Ardmore's failure to request necessary documents during the adjudication undermined its argument, concluding that there was no real prospect of successfully challenging the enforcement on these grounds.

4.

Material Defense Ignored (Ground 4):

Ardmore alleged that the Adjudicator ignored a key defense concerning deliberate concealment. The court determined that there was no evidence supporting Ardmore's claim that the Adjudicator deliberately ignored this defense.

Conclusion:

The court dismissed all four grounds raised by Ardmore as lacking merit. Consequently, the court granted summary judgment in favor of BDW, enforcing the Adjudicator's Decision and awarding BDW £14,539,243.45, inclusive of interest and costs.

Judgment:

BDW is awarded enforcement of the Adjudicator's Decision, requiring Ardmore to pay the specified amount, with interest and costs.

Notes:

• The court emphasized the importance of adjudication as a speedy mechanism for dispute resolution in construction contracts.
• The decision reinforces the principle that adjudicators have jurisdiction over statutory claims arising within the context of construction contracts.