Going too far

The technology and construction Court’s decision in the case of JJJ Project Management Ltd vs Jenkins Electrical Ltd is certain to set the cat among the industry’s pigeons.

Probably the strangest aspect of what became an extremely odd case was how unremarkable were its origins. Jenkins, a St Austell-based electrical contractor, was in dispute with JJJ over a series of interim payments connected with its work on an office fit-out in Bridgwater, Somerset.

It seems that a series of meetings took place between the two parties, in the course of which a personal animosity developed between the principals: Simon Jenkins, the founder and managing director of Jenkins Electrical, and Paul Johnston, chairman of JJJ PM.

After the parties failed to reach an informal resolution, Jenkins activated the alternative dispute resolution clause in the PPC2000 partnering contract between the two firms. Rather than opting for conventional solutions, such as expert determination or guided mediation, he challenged Johnston to a duel. The disagreement was in effect to be decided by the death or maiming of one or other of the parties.

Johnston declined this offer, whereupon the matter was taken to adjudication. Counsel for Johnston pointed out that duelling had been illegal in Britain since 1804, and that an illegal contract term could not be enforced. Jenkins’ lawyer responded that the precedent was in fact trial by combat, which was the very font and origin of England’s adversarial legal system.

As is customary, the adjudicator found for the claimant and agreed, for a suitable extension of his fee, to supervise the ensuing proceedings.

The next point to be decided was choice of weapons. Johnston suggested that the matter be settled by means of either arm wrestling or pie-eating. Unsurprisingly, these were dismissed as “frivolous and vexatious” by Jenkins’ team, the legal principle here being that of “equality of arms” – Johnston weighed somewhere in the region of 17 stones whereas Jenkins possessed a more compact physique. As the use of pistols was illegal under English law, the adjudicator fell back on the traditional recourse of rapiers.

It seems that a series of meetings took place between the parties, in the course of which a personal animosity developed between the principals

At this point Johnston made a without prejudice offer to settle the dispute by paying in full the interim payments requested and adding interest at five points above prime. Jenkins rejected this on the grounds that Johnston had “gone too far”. JJJ PM’s lawyers then applied to the TCC to have the adjudicator’s decision overturned.

The case came before His Honour Judge Magdalene in Bristol. Basing himself squarely on Bolingbroke vs Mowbray, as well as recent Middle Eastern precedents, the judge found that trial by combat “underpinned the basic principles and minor details of modern civil law”. “We inherit an old gothic castle, erected in the days of chivalry, but fitted up for a modern inhabitant,” he said, adding that trial by combat fulfilled the intentions of parliament in the Construction Act and the Woolf reforms, inasmuch as it was “admirably quick and undeniably cheap”.

The contest was held at the close of the enforcement hearing. Mr Jenkins took the Bible in his right hand and in his left the right hand of his antagonist, and swore his willingness to “make good the appeal body for body”. The ensuing bout lasted for about six seconds, Johnston suffering a fatal cut to the liver while attempting to make an urgent call to his solicitor on his mobile phone.

It is, of course, too early to determine the ramifications of the case, but it is likely on balance to be beneficial to the industry. At the very least, nobody will go too far again.

Morgana Butterworth is a partner in the construction department of Paddock, Marsh & Grimalkin