Court Determines Works in Crystal Electronics v Digital Mobile Spectrum Were Not Construction Operations Under 1996 Act

Citation: [2023] EWHC 2656 (TCC)
Judgment on

Introduction

In the case of Crystal Electronics Limited v Digital Mobile Spectrum Limited, the High Court of Justice, Business and Property Courts of England and Wales Technology and Construction Court (TCC), adjudicated on the enforceability of two adjudication decisions related to claims for unpaid charges for works undertaken by the claimant under a contract with the defendant. The key legal question was whether the works performed constituted “construction operations” under the Housing Grants, Construction and Regeneration Act 1996 (the 1996 Act), and whether the adjudicator had jurisdiction to decide on disputes arising from contracts that included such operations.

Key Facts

Crystal was a contractor engaged by DMSL to provide services aimed at mitigating the interference of 4G mobile broadband services on digital terrestrial television. The works included various tasks such as fitting filters, retuning television sets, and installing aerials.

DMSL contested an invoice raised by Crystal, leading to two adjudications. The adjudicator ruled in favor of Crystal, but DMSL challenged the enforcement of the decisions on the grounds that the works were not “construction operations” as defined in the 1996 Act and, therefore, the adjudicated contract was not a construction contract within the scope of the Act.

The court needed to decide if the works qualified under section 105 of the 1996 Act as construction operations and, if not, whether any non-construction operations formed more than a de minimis part of the works, which would affect enforceability.

The court relied on several legal principles in reaching its decision:

  1. Definition of Construction Contracts: Under Section 104 of the 1996 Act, a construction contract encompasses agreements for carrying out construction operations, including arranging for these operations through others and providing labor for such operations.

  2. Scope of Construction Operations: Section 105 of the 1996 Act defines construction operations to include various works connected to buildings, structures, or fittings forming or to form part of the land, among other things.

  3. Hybrid Contracts: Section 104(5) introduces the concept of hybrid contracts, which relate to both construction operations and non-construction matters. The Act only applies to the portions relating to construction operations.

  4. Precedent and Interpretation of “Part of the Land”: The judgment referred to past decisions, notably Savoye v Spicers Ltd, to clarify what constitutes “forming part of the land.” The judgment detailed criteria such as permanence, purpose, and the method of annexation in determining what is part of the land.

  5. Surveying Work and Engineering Advice: The judgment also touched on Section 104(2) which considers agreements to perform surveying or engineering work or provide advice on such matters in relation to construction operations as construction contracts.

Outcomes

The court found that a substantial proportion of the works performed by Crystal were not construction operations and, therefore, fell outside the ambit of the adjudicator’s jurisdiction. Particularly, activities like retuning television sets or fitting filters did not qualify as construction operations.

Additionally, the court found that Crystal did not carry out “surveying work” or provide “engineering advice” as intended by Section 104(2) of the 1996 Act since such advice or work would need to be in relation to construction operations, which was not the case here.

On the specific point of television aerials, the court considered their nature and the method of their installation, determining that aerials were not generally part of the land and hence work on them did not constitute construction operations.

Therefore, the adjudication decisions were deemed unenforceable, as the works covered by the contested invoice included non-construction operations that were more than de minimis.

Conclusion

In Crystal Electronics Limited v Digital Mobile Spectrum Limited, the court provided clarity on the meaning of construction operations under the 1996 Act and underscored the Act’s application limits to such operations. The court asserted that for an adjudication decision to be enforceable, all operations involved must be construction operations (except for de minimis instances). The decisions reinforced the principle that activities falling outside the definition of construction operations—even if related to the broader construction industry—do not render a contract a construction contract under the 1996 Act. Consequently, the High Court dismissed Crystal’s claim to enforce the adjudication decisions.

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