MW High Tech Projects UK Ltd v Balfour Beatty Kilpatrick Ltd

A dispute may crystallise through silence where a contractual claim has been adequately notified, the respondent is obliged to respond within a specified period, and that period expires without admission. Later expert evidence does not create a new claim merely because it develops the analysis or marginally changes the quantified relief. The question is one of fact and degree: supplementary information remains part of the original claim unless it changes its fundamental nature and basis. Where it does amount to a new claim, the contractual response period may restart. Adjudication provisions must be construed compatibly with the Housing Grants, Construction and Regeneration Act 1996. An adjudicator has jurisdiction over the crystallised dispute, including the evidence and arguments deployed to resolve it.

The claimant, MW High Tech Projects UK Ltd, engaged the defendant, Balfour Beatty Kilpatrick Ltd, under a JCT Design and Build Sub-Contract 2011 with amendments. The defendant issued five delay notices seeking extensions of time. The claimant did not respond within the contractual 16-week period. The defendant later supplied an expert delay report and commenced adjudication. The adjudicator awarded the full extension of time claimed and ordered the claimant to bear the adjudicator’s fees.

MW brought a Part 8 claim seeking declarations that no dispute had crystallised, that the adjudicator lacked jurisdiction, and that the decision was void. The central issues were whether the expert report constituted a fresh notification and whether a dispute had crystallised before the adjudication began.

1. Jurisdiction and validity. The adjudicator had jurisdiction to determine the dispute referred on 7 August 2019. The decision dated 10 October 2019 was valid and binding.
2. Contractual notices. Each of the five delay notices identified the material circumstances and causes of delay, the relevant events relied upon, and particulars of the expected effects, including estimated delay. They therefore satisfied clauses 2.17.1 and 2.17.2 of the Contract. Clause 2.18 required MW to notify its decision within 16 weeks of receipt of the required particulars.
3. Crystallisation. MW’s failure to respond within the contractual period amounted to a breach and justified the inference that the claim was not admitted. Because the notices described cumulative delay, a dispute crystallised when the 16-week period following the February 2019 notice expired. The absence of an express rejection did not prevent crystallisation.
4. Later information. Clause 2.17.3 contemplated supplementary information, but a material change may, depending on the facts and degree, amount to a new claim and restart the response period. The Goodman Report did not do so. Its critical-path analysis supported the previously notified claim. The reference to second-side boarding did not introduce a new relevant event because the earlier notices had relied on mist coating forming part of that work. The underlying causes remained delays to MW’s preceding works.
5. Statutory compatibility and enforcement. Clauses 2.17 and 2.18 were construed consistently with section 108 of the Housing Grants, Construction and Regeneration Act 1996. The court applied the robust approach to adjudication enforcement described in Carillion v Devonport Royal Dockyard [2005] EWCA 1358. MW was liable for the adjudicator’s fees of £37,251.66.