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A claim referred to adjudication is not necessarily confined by the clauses relied upon in the contractual claim

23 February 2021

We acted on behalf of a contractor constructing civil and electrical engineering services.  The conditions of contract were the GCC 2015.  The project was delayed by the nationwide lockdown between 27 March 2020 and 1 May 2020 (levels 5 and 4 of the lockdown). 

The employer’s agent awarded the contractor an extension of the date for practical completion and associated time-related general items in terms of Clause 5.12 of the GCC 2015.  The employer’s agent, however, rejected the contractor’s claim for proven additional costs on the grounds that the contractor had relied upon the incorrect clause in the contract (Clause 5.10 instead of Clause 8.3.2 read with Clause 8.1.7) in claiming such entitlement. The contractor had at all times included a reference to Clause 8.1.7 in its claims correspondence but agreed that it had incorrectly relied upon Clause 5.10 instead of Clause 8.3.2.  The contractor did not, however, accept that this rendered is claim sufficiently defective to warrant rejection.

The adjudicator found in favour of the contractor on the grounds that the Adjudication Board Rules entitle him to open up review and revise the employer’s agents ruling, and he is not restricted by what was considered in this ruling.  The contractor’s reliance upon Clause 5.10 instead of Clause 8.3.2 was a technical error which in no way affected the underlying validity of the claim or calculation of the contractor’s entitlement, and there was no intention on the part of the contractor to mislead the employer’s agent.

The employer also raised a number of other issues relating to the time bar attached to the dispute notice and notice of adjudication, but these will not be addressed in detail here save to say that these arguments were also rejected by the adjudicator.

Author: Michelle Kerr, Director