"It is apparent from the attached analysis [a Programme … ] that, as a result of numerous delays and additional works during the currency of the Sub-Contract Period … together with additional works instructed after the Sub-Contract Period passed, that VGC suffered delays and consequently loss due to no fault of their own."
The Adjudicator issued his decision that in effect there was a net sum due to VGC of £745,657.64, including the £300,000 delay and disruption claim. That decision was not honoured and VGC instituted enforcement proceedings.
A major issue to be considered was whether the claim of £300,000.00 was so nebulous and ill-defined as to give rise to any dispute. Jackson submitted three grounds of opposition to the summary judgement:
i. The claim for the £300,000 was originally made in Applications 13 and 14 with no breakdown or supporting documents. The claim was later separated from the Final Account and was due to be the subject of a separate submission which never came. The question of whether this claim was withdrawn was a factual dispute that could not be resolved by summary judgement.
ii. The claim of £300,000 was unsubstantiated and so nebulous that there could be no dispute in respect of it.
iii. The claim for the £300,000 was entirely or substantially new so the Adjudicator had no jurisdiction to deal with it.
In granting the application in favour of VGC, Mr Justice Akenhead held: (1) On a proper interpretation of the evidence, it was clear that VGC had not entered into a binding agreement to withdraw its claim for delay and disruption. The word "withdraw'" or some comparable word was never used in any of the surrounding documents or discussions between the parties, and there was no suggestion of its abandoning that aspect of its claim. There had to be a clear agreement or at least a clear representation made by VGC that it would no longer pursue its claim for delay and disruption, and there was none. (2) A claim expressed in one line and only briefly described would not necessarily always be classified as being nebulous or ill-defined if, having regard to the surrounding circumstances, it was given context. In the instant case, having regard to the surrounding circumstances and VGC's application as a whole, it must have been clear to Jackson what the claim for delay and disruption was referring to. (3) The parties had expressly agreed upon the appointment of an adjudicator to resolve the disputes that had arisen between them, and the adjudicator had jurisdiction to deal with exactly those disputes to which he referred to in his decision. Thus, there was no merit in the challenge to his jurisdiction to adjudicate on the disputes before him.
"There can be no doubt or issue that the Adjudicator had jurisdiction at least to resolve some dispute. The parties expressly agreed upon his appointment as Adjudicator to resolve disputes or differences that had arisen between them. I have found that the disputes or differences which had arisen between the parties were effectively exactly those which the Adjudicator referred to in his decision … I am satisfied that there was no effective or indeed any challenge to the jurisdiction of the adjudicator. The Response essentially invited the Adjudicator to dismiss the claim in its entirety because it was not supported by sufficient backup supporting information or evidence … That is not a challenge to the jurisdiction. That is seeking a binding decision that by reason of the paucity of supporting information that claim should be valued at nil. In context, that is affirming the jurisdiction of the Adjudicator to adjudicate upon the £300,000 claim."