This is an application for summary judgment by Toppan Holdings Limited (“Toppan”),  against Simply Construct (UK) LLP (“Simply Construct”), to enforce two adjudication decisions for Mr Peter Vinden dated 30 April 2021. In short, Toppan (and its occupational tenant and operator of a care home – Abbey Healthcare (Mill Hill) Limited (“Abbey”)) entered into  a construction contractor with Sapphire Building Services Limited who engaged Simply Construct by a JCT Design and Build Contract 2011 with amendments June 2015 (the “Building Contract”) with a contract sum of c.£4.7 million.

The works commenced on 11 May 2015 with practical completion on 10 October 2016. In or around August 2018, Toppan discovered fire-safety defects in the Care Home that would eventually be rectified by another contractor. In October 2020 the parties entered into a collateral warranty by which Simply Construct warranted amongst other things that it had performed and would continue to perform diligently its obligations under the Building Contract.

Toppan and Abbey served separate notices of adjudication on Simply Construct in December 2020. Mr Vinden was nominated as adjudicator for both disputes, which proceeded in parallel. In the Abbey adjudication, Simply Construct challenged the adjudicator’s jurisdiction on the basis that the collateral warranty was not a construction contract. On 26th February 2021, the adjudicator gave a non-binding ruling in favour of both claimants in each adjudication.

Simply Construct resisted enforcement of the decisions chiefly on that  basis that the collateral warranty was not a construction contract for the purposes of the 1996 Act.

After considering the case law and in particular Mr Justice Akenheads’s decision in Parkwood v Laing O’Rourke [2013] B.L.R. 589,. Deputy Judge Bowdery QC decided that  the warranty was not a construction contract and but was instead a “a warranty of a state of affairs past or future akin to a manufacturer’s product warranty.” The key factor was that at the time the warranty was executed, Simply Construct no longer had any construction works to carry out, and as a result the warranty was not a contract for “the carrying out of construction operations” within the meaning of the Act.

This case is an important consideration as to whether collateral warranties can be considered to be a “construction contract” for the purposes the Construction Act.