Case reference:
[2000] EWHC Technology 40
ABB had been employed to design, build and maintain diesel powered generation stations on two sites where the employer carried out a magazine printing business. ABB entered into a sub-subcontract with Zedal for the supply, installation, labelling, termination and testing of all field wiring, including the installation of certain metal containment systems and secondary steel support. The works were carried out on small areas of the employer’s land and each station was surrounded by a security fence. The subcontract contained no express adjudication clause.
Disputes arose between the parties and Zedal referred the matter to adjudication. ABB changed the jurisdiction of the Adjudicator on the grounds that there was not a construction contract as it fell within the exception in s105(2)(c) of the Act as it was for the installation of plant on a site where the primary activity was power generation. The parties agreed to adjourn the adjudication proceedings whilst ABB applied to the Court for a declaration that the sub-subcontract was not a construction contract within the meaning of the Act.
The Judge refused to grant the declaration. While there was some installation of plant by Zedal, that installation was not on a site where the primary activity was power generation. The reference in s.105(2)(c) to “a site where the primary activity is” had to be a reference to a place broader than a generator surrounded by a security fence. To make any sense of the Act, it was necessary to look to the nature of the whole site and ask what the primary purpose was. Here, the primary purpose was printing and not power generation.