An attempt by Bam Nuttall to enforce an adjudication for over £1m in fees on a London Underground upgrade project has been thrown out of court.
Bam Nuttall was working for Swiss-headquartered power and automation contractor ABB, who were main contractor to carry out major power upgrade work to parts of the Tube network, installing a three-storey bulk supply point adjacent to Edgware Road station.
The sub-contract for removal and decommissioning of redundant cables and design and installation of new distribution cables was awarded to Bam Nuttall in November 2009.
But the adjudicator was not called in until the beginning of 2013, when Bam Nuttall claimed £977,000 for survey and design work carried out on a cable of networks on the underground.
Including fees for work, interest and costs, the adjudication decision would have been worth just under £1.1m to Bam Nuttall if enforced.
A price of £1.5m was agreed with ABB for survey and design work where parts of the original design were not viable, but Bam Nuttall argued that this only applied up to 31 Jan 2011, and claimed an extra £977,000 for survey and design work done between February 2011 and March 2012.
ABB countered that the £1.5m figure applied to all survey and design work, and that Bam would only be paid for additional work after that date if it was required for reasons beyond Bam’s control.
ABB also made a payment of £3,500 in September 2012, which it described as a “commercial gesture of good faith”.
Bam then served a notice of intent to refer the dispute to an adjudicator in February 2013. The adjudicator found that ABB should pay Bam Nuttall £973,000, along with £23,000 in interest, £85,000 in costs and £15,000 in adjudicator fees.
Both parties then issued proceedings at the Technology and Construction Court: Bam to enforce the adjudication, and ABB to rule the adjudication invalid.
Among ABB’s complaints was that the adjudicator had decided important parts of the case on grounds not put before him by either side or raised by him.
Mr Justice Akenhead found that the adjudicator had decided a key issue in the dispute by reference to and in reliance upon a contractual clause that neither party had referred to or relied upon, and that he did not give the parties the opportunity to address him on the issue.
The judge found that relying on the clause could have been decisive in the adjudicator’s decision, and ruled that ABB was entitled to the declaration it was seeking that the adjudication be ruled not valid.
All parties declined to comment.