Empyreal Energy Ltd v Daylighting Power Ltd [2020] EWHC 1971 (TCC) (22 July 2020)

Empyreal Energy Ltd v Daylighting Power Ltd [2020] EWHC 1971 (TCC) (22 July 2020)

The dispute referred to expert determination was a claim for the cost of remedial works, not for reduction or reimbursement of the contract price under clause 13.7(b); therefore, it was outside the scope of expert determination permitted by the contract. Additionally, the notice served was not sufficiently clear and unambiguous to constitute valid notice of intention to refer under clause 36.1.

Citation
[2020] EWHC 1971 (TCC)
Parties
Part 7 Claimant / Part 8 Defendant: Empyreal Energy Limited; Part 7 Defendant / Part 8 Claimant: Daylighting Power Limited
Jurisdiction
England and Wales
Judgment Date
22 July 2020
Procedural Posture
Commercial Construction Dispute (summary Judgment and Trial of Part 8 Proceedings) / Judgment Following Hearing on Summary Enforcement and Jurisdictional Challenge
Outcome
Claim dismissed; expert determination held null and void for lack of jurisdiction.
Legal Topics
Expert Determination, Contractual Interpretation, Jurisdiction, Notice Requirements
Contract Law Construction Law Dispute Resolution Expert Determination Contractual Interpretation Jurisdiction Notice Requirements

Case Brief

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Parties

Empyreal Energy Limited

Part 7 Claimant / Part 8 Defendant

Daylighting Power Limited

Part 7 Defendant / Part 8 Claimant

Procedural Posture

Commercial Construction Dispute (summary Judgment and Trial of Part 8 Proceedings) / Judgment Following Hearing on Summary Enforcement and Jurisdictional Challenge

Legal Issues

  1. 1 Whether the dispute referred to expert determination was permitted under the contract
  2. 2 Whether valid notice of intention to refer dispute to expert determination was served

Ratio Decidendi

The dispute referred to expert determination was a claim for the cost of remedial works, not for reduction or reimbursement of the contract price under clause 13.7(b); therefore, it was outside the scope of expert determination permitted by the contract. Additionally, the notice served was not sufficiently clear and unambiguous to constitute valid notice of intention to refer under clause 36.1.

Court Disposition

Claim dismissed; expert determination held null and void for lack of jurisdiction.

Orders

  • EEL's claim to enforce Mr Sliwinski's determination fails.
  • Mr Sliwinski's determination dated 5 May 2020 is null, void and of no effect and not binding on the parties.