Stuart-Smith J has declined to enforce an adjudicator's decision in this case, after finding that some of the works which were the subject of the decision fell within the exception at s. 105(2)(c) of the Housing Grants, Construction and Regeneration Act, which includes the erection and demolition of steelwork for providing access where the primary activity is power generation. The parties entered into a contract on 13 August 2013 for the design, supply and erection of steel structures by Severfield for Duro in its project to build a combined cycle gas technology power station at Carrington in Manchester.
Severfield's application for payment which was the subject of the adjudication proceedings included sums for fabrication, delivery and erection of the steelwork. Duro raised the issue of jurisdiction, alleging that the referral included items that fell within the exception at s. 105 (2)(c). The adjudicator proceeded with the adjudication, with Duro reserving its position in relation to jurisdiction. The adjudicator awarded sums to Severfield which Duro did not pay.
On enforcement, the judge had to decide whether Duro had a reasonable prospect of showing that some of the steelwork for which Severfield had claimed fell within the exception, adopting the approach of Ramsey J in Cleveland Bridge (UK) Ltd v Whessoe-Vokler Stevin & Ors, namely that it was not open to the court to adjust the award so as to sever that part which should not have been awarded. Acknowledging that this approach may mean the raising of unmeritorious technical defences which deprive the industry of the cashflow which is its lifeblood, he nonetheless considered that was not justification for bending application of the relevant principles, and accordingly gave Duro leave to defend.