Jennifer Jones acting for the employer Empyreal Energy Limited in Empyreal Energy Ltd v Daylighting Power Ltd  EWHC 1971 (TCC) (22 July 2020) successfully established that the employer’s expert was entitled to determine the existence of defects.
However the court found that the dispute that had been referred by the employer Empyreal Energy Limited (“EEL”) to the expert determiner and his decision were not permitted under the contract (Clause 36) and that the employer had not served a notice on DPL of its intention to refer the dispute for expert determination in accordance with the requirements of Clause 36.1 of the Contract.
Two sets of proceedings had been issued in the dispute which arose out of an EPC contract (dated November 2015) made between EEL and the contractor Daylighting Power Limited (“DPL”). The contract was for DPL to carry out the design, supply, installation, testing and commissioning of a solar energy park in Essex.
EEL alleged that DPL’s work was defective. DPL issued Part 8 proceedings on 14 May 2020. EEL commenced Part 7 proceedings on 29 May 2020. Both proceedings raised the same issue – namely whether Mr Robert Sliwinski, acting as an expert, had jurisdiction to determine and order that DPL pay to EEL the sum of £1,708,474.00 in respect of the cost of remedying works which EEL asserts but DPL denies were defective. Mr Sliwinski made ancillary orders for the payment of interest and his fees of the determination. EEL sought to enforce Mr Sliwinski’s order; DPL resisted enforcement.
In effect there were two questions before the court that is:
i) Was the dispute which EEL purported to refer to the expert determiner, and which he purported to decide, a dispute which the Contract permitted to be referred to expert determination in accordance with Clause 36?
ii) Did EEL serve a notice on DPL of its intention to refer the dispute for expert determination in accordance with the requirements of Clause 36.1 of the Contract?
Stuart-Smith J found that while EEL’s expert was entitled to determine the existence of defects, the dispute which EEL purported to refer, and which Mr Sliwinski purported to decide, was not one which the Contract permitted to be resolved by expert determination, that EEL failed to serve a notice on DPL of its intention to refer the dispute in accordance with clause 36.1 of the Contract, and that Mr Sliwinski lacked jurisdiction and his Determination dated 5 May 2020 was not binding on the parties. Accordingly EEL’s claim to enforce Mr Sliwinski’s determination failed.
Jennifer Jones (instructed by Stephens Scown LLP) for the Defendant.
To read the full judgment please click here: Empyreal Energy Ltd v Daylighting Power Ltd  EWHC 1971 (TCC) (22 July 2020)
20 July 2020