FW Cook Ltd v Shimizu (UK) Ltd 2

If a referral notice does not seek payment of a particular sum of money, then the adjudicator's findings should be implemented by considering the decision in the context of the contract and pre-existing payment notices to ascertain the amount due.

HHJ Humphrey LLoyd QC, Technology & Construction Court

4 February 2000

The dispute arose out of a contract for mechanical works. C served a notice of referral to adjudication and sought the "reinstatement" of one claim against S and the "removal" of three items that S had charged to its account. The notice did not expressly seek payment of any sum.

The adjudicator gave a ruling on the four issues, but did not identify any money as payable. The parties could not agree how the adjudicator's findings should be implemented, so C tried to enforce its own interpretation via the court. S paid C what it considered to be due.

C argued that the adjudicator's various findings should be added together to arrive at a balance payable to C, on the basis that the issues referred were discrete and payable in their own right. C said it would be inappropriate to consider what monies were owed under the contract and pre-existing payment notices. S argued that it interpreted the referral notice as requesting values to be applied to various items, and that these would then be placed into the existing payment notice to arrive at a balance due to C. On S's interpretation, the result would be a lesser payment to C.

The court considered that there were two stages to the process. First, the court would interpret the referral notice to decide what was referred to the adjudicator. The court would only interpret the award if either party alleged that the adjudicator had exceeded his jurisdiction. The court considered that in its referral notice, C was not seeking payment of sums in isolation. It was seeking a valuation of various components of the overall position between the parties. On this basis, S had paid the sums due and C's application for summary judgment was dismissed.

The court did not need to go on to interpret the award. The court did note that had it had to do so, the award was clear and unequivocal: it did not define any money as payable which was consistent with the approach suggested by S. Therefore, if a party intends to ask for payment of isolated issues, this should be clear from the face of the referral notice.

If a referral notice does not seek payment of a particular sum of money, then the adjudicator's findings should be implemented by considering the decision in the context of the contract and pre-existing payment notices to ascertain the amount due.

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