HT-2024-000328 - [2025] EWHC 2926 (TCC)

The background to this dispute can be summarised as follows. On or around 6 July 2020 the parties entered into a JCT Minor Works Building Contract with Contractor's Design (2016 Edition) for the Claimant to carry out the partial demolition, reconstruction and extension of the main entrance over two floors of the Defendants’ property for the sum of £117,579.93. A dispute arose between the parties as to progress of the works.

On 7 December 2020, the Defendants served a notice of default under the contract. The Defendants’ position was that the requirements of that notice were not satisfied and on 15 December 2020, the Defendants served a termination notice. The Claimant disputed the validity of the termination notice.

On 8 July 2022, the Defendants served a notice of arbitration. There were a number of delays to the arbitral process, as a result both of procedural disputes and the Arbitrator’s personal difficulties.

The Award was dated 27 August 2024 and was released to the parties on 3 September 2024 following payment of the Arbitrator’s fee by the Defendants.

The Arbitrator found that the termination notice was valid on the ground that the Claimant had failed to advance the plumbing design and failed to provide the requested details of the cylinder and radiator sizing within the timetable set out in the default notice.

At paragraph 94 of the Award, the Arbitrator turned to consider what was then identified as issue 2, namely: “Did NPS fail to advance the plumbing design and fail to provide the details of the cylinder and radiator sizing within the time requirement set out in the default notice?” The Arbitrator found at paragraph 95 that it was common ground between the parties that NPS was responsible for the design and installation of the heating and electrical services by virtue of the Contractor’s Design Portion Supplement. The provisions of the contract specifications included in relation to the heating and plumbing, the following:

“All plumbing and heating installations formed part of the Contractor’s Design Portion and are to be designed and implemented by the Contractor following the sign off of their schematic drawing and specifications”.

At paragraph 100 of the Award the Arbitrator stated:

“I have seen no evidence that NPS ever prepared either a schematic design or a specification for the plumbing works it intended to install”.

At paragraphs 115-116, the Arbitrator stated:

“The Dykes’ case is that NPS failed to proceed regularly and diligently with the design of the contractor’s design portion. It then issued the notice in which it set out the specified defaults which it required to be rectified within seven days, namely the advancement of the CDP for the plumbing and the confirmation of the sizing of the hot water cylinder and radiators. On 15 December it issued the termination notice which recorded that NPS had not complied with that improvement notice.

On balance, I prefer the Dykes’ interpretation of events.

At paragraphs 119-120, the Arbitrator stated:

“Although some information was supplied by NPS to Witcher on 14 December 2020 regarding the size of the cylinder, at paragraph 111 of his first witness statement, Mr Betsy records that the information requested by Witcher was supplied to the Dykes on 18 December 2020. That response was too late because the termination notice had been served on 15 December 2020.

I therefore find, in answer to Issue 2, that NPS failed to advance the plumbing design and failed to provide the requested details of the cylinder and radiator sizing within the timetable requirement set out in the default notice IN 2”.

The Claimant, on receipt of the Award, sought legal advice upon it, as it considered that the Tribunal had overlooked and accordingly failed to take into account evidence that was before it which contradicted the Tribunal’s conclusions in the Award.

On 13 September 2024, the Claimant wrote to the Tribunal and to the Defendants, setting out its observations as to perceived errors in the Award and asking the Arbitrator to consider its further submissions. A response from the Defendants was received on 24 September 2024, objecting to any further review. On 13 October, the Arbitrator indicated that he saw no grounds for correction of the Award.