UK: Identifying The ‘Primary Activity' On-Site – Engie Fabricom UK Ltd V MW High Tech Projects UK Ltd [2019] EWHC 1876 (TCC)

Last Updated: 3 September 2019
Article by Mark Roach and Christy Mellifont

Executive Summary

In Engie Fabricom UK Ltd v MW High Tech Projects UK Ltd, the Court refused to enforce an adjudicator's decision because it found that the Defendant had reasonable prospects of showing that the primary activity of the site in question was power generation, and consequently that the parties' sub-contract fell within the section 105(2) exclusions in the Housing Grants Construction and Regeneration Act 1996 ("the Act").

Background

The Defendant was the main contractor appointed to construct a fluidised bed gasification power plant in Hull. The Defendant appointed the Claimant under a sub-contract to perform the works.

A dispute arose between the parties in relation to payments under the sub-contract. There was an issue before the adjudicator as to whether she had jurisdiction to determine the dispute. The adjudicator's non-binding decision was that the sub-contract was a construction contract as defined in the Act, and consequently she had jurisdiction to determine the dispute. The adjudicator ordered that the Defendant pay the Claimant the sum of £27,062.25 plus interest and VAT, and that the Defendant pay her fees and expenses and the fixed charge in respect of her appointment.

The Claimant sought to enforce the adjudication decision before the TCC by way of summary judgment application. The Defendant resisted the Claimant's application on the basis that: a) the adjudicator's decision was wrong; b) alternatively, that it had a real prospect of success of establishing that the decision was wrong; c) alternatively, that there was some other compelling reason for trial of the issues.

Issues in dispute

It was common ground between the parties that, if the primary activity of the site was power generation, then, pursuant to section 105(2)(c)(ii) of the Act, the works were not "construction operations" and there was no legal right or entitlement to adjudicate, so that the adjudicator's decision was without jurisdiction and unenforceable.

The Court reviewed the legal principles relating to determination of the primary activity on site. In summary:

  1. There is a distinction between the primary purpose and the primary activity on site. While the former is a relevant consideration, it may be the primary activity of a site is different (for example, because of the scale or output of the activity);
  2. The exclusions in s 105(2) of the Act should be construed narrowly.
  3. The meaning of "the site" is determined by the overall impression rather than a detailed examination of particular documents or obligations.


The Claimant contended that the primary activity on site was the disposal and thermal treatment of waste by incineration/gasification as an alternative to landfill, and that power generation was merely a secondary activity. It relied on documents prepared for the Employer for the purposes of attracting investment for the project, which explained that the driver of the project was the high rate of waste generated in England and stringent EU requirements to reduce the amount of waste going to landfill. The Claimant also relied on EU legislation, as well as the terms of the permit which was granted by the Environment Agency, to show that the primary activity was thermal treatment of waste. The Claimant also submitted that only a small amount of energy was generated by the plant.

The Defendant argued that it was necessary to look at the nature and purpose of the whole site. It relied on a number of factors to argue that the primary activity was power generation, including that planning permission for the site referred to power generation, that the wording of the main contract and subcontract was consistent with power generation, and that the site generated electricity for export to the National Grid (not just for the plant itself). The Defendant also argued that it was wrong in principle for the Claimant to look to EU legislation concerned with the protection of the environment and public health in order to construe domestic UK construction legislation.

The Decision

The Court was "entirely satisfied" that the Defendant had shown it had a real prospect of successfully demonstrating that the primary activity on site was power generation. Interestingly, the Court also agreed with the Defendant that there was a reasonable prospect that the Claimant's emphasis on EU legislation was irrelevant to the construction of the sub-contract in the context of the Act. In any event, the Court was satisfied that more documentary evidence and expert evidence was required to assist the Court to determine the issue.

Lessons for the industry

The matter will now proceed to a trial on the issue of the primary activity on site and, while the sums in dispute in this proceeding may be considered modest, it is likely that the ultimate decision will have implications for more significant disputes on the same types of project.

More broadly the decision illustrates the difficulties with interpreting the exclusions under s 105(2) of the Act, and shows why the exclusions have been the subject of confusion and criticism in the past. It remains to be seen whether there will be any reform in this area. The proposed amendments to the Construction Act did consider removing this exclusion.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions