Empyreal Energy Ltd v Daylighting Power Ltd

Empyreal Energy Ltd v Daylighting Power Ltd

The dispute referred was a claim for the cost of remedial works, not a claim for reduction or reimbursement of the Contract Price as required by clause 13.7(b) and 13.8; therefore, it was not permitted to be resolved by expert determination under the contract. Additionally, the notice served was not sufficiently clear and unambiguous to constitute valid notice of intention to refer under clause 36.1.

Parties
Claimant/defendant: Empyreal Energy Limited; Defendant/claimant: Daylighting Power Limited
Jurisdiction
England and Wales
Judgment Date
22 July 2020
Procedural Posture
Commercial Construction Dispute / Summary Judgment Application and Trial of Part 8 Proceedings
Outcome
Claim dismissed; expert determination not binding.
Legal Topics
Expert Determination, Contractual Interpretation, Dispute Resolution, Jurisdiction, Notice Requirements
Contract Law Construction Law Expert Determination Contractual Interpretation Dispute Resolution Jurisdiction Notice Requirements

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Parties

Empyreal Energy Limited

Claimant/defendant

Daylighting Power Limited

Defendant/claimant

Procedural Posture

Commercial Construction Dispute / Summary Judgment Application and Trial of Part 8 Proceedings

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 the dispute was served in accordance with the contract

Ratio Decidendi

The dispute referred was a claim for the cost of remedial works, not a claim for reduction or reimbursement of the Contract Price as required by clause 13.7(b) and 13.8; therefore, it was not permitted to be resolved by expert determination under 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 not binding.

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 is not binding on the parties.