Cubex (UK) Ltd v Balfour Beatty Group Ltd

[2021] EWHC 3445 (TCC) 

Cubex sought the summary enforcement of an adjudicator’s decision in the sum of £410k. BB said that the contract related either wholly to excluded activities or at least in part to them. Following the case of Cleveland Bridge UK Ltd v. Whessoe-Volker Stevin Joint Venture (Dispatch Issue 186), if the contract related in part to excluded operations, then, as a hybrid contract, the court would not have jurisdiction. Cubex was required to carry out the design and supply of the doors in issue. BB relied on sections 105(2)(d)(i) and (ii) of the HGCRA saying that the contract would be one for the manufacture or delivery to site of building or engineering components or equipment, materials, plant, or machinery. 

The Adjudicator concluded that as an agreement to undertake design was within the scope of the HGCRA, that meant that the contract was not a supply only contract. The Judge disagreed, noting that section 104(2) of the HGCRA provided that:

“(2) References in this Part to a construction contract include an agreement -

(a) to do architectural, design or surveying work, or […]

in relation to construction operations

(5) Where an agreement relates to construction operations and other matters, this Part applies to it only so far as it relates to construction operations.”

On the basis that the design was said to be in relation to the supply of doors, this brought matters back to section 105(2)(d). The contract was not, therefore, a construction contract within the meaning of the HGCRA. This was sufficient to end Cubex’s claim. But the Judge went on to address certain other issues.

One of these related to the contract. It was said that the Adjudicator had not been appointed under a contract about which there was or could be no dispute.

The Adjudicator found that the essential terms of the contract had only been agreed by 23 February 2017. However, there was nothing in the evidence which indicated what those outstanding essential terms were said to be. The Judge noted that this was: “perhaps unsurprising given that 23 February 2017 was not a date for which either party contended as the date of a concluded contract.” Further, it appeared that the adjudicator had found a contract which was not contended for by either of the parties relying on the agreement of essential terms on that date, which terms Cubex itself could not identify. The failure to draw the parties’ attention to the Adjudicator’s analysis which concluded with the contract camw into existence on 23 February 2017 was a sufficient breach of natural justice to be material.

BB had also suggested that the claim for enforcement has been brought late. Specifically, that there had been “inordinate delay” on the part of Cubex between the Decision being issued on 1 May 2018 and the commencement of the enforcement proceedings in September 2021. The explanation for the delay included that that the solicitor involved had changed firms and financial constraints on Cubex. 

The Judge did not consider that there was any specific obligation to bring enforcement proceedings by any particular date within the relevant limitation period.

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