This shopfitting dispute sounds hair-raising, but it is really nothing out of the ordinary. That’s because people who work in construction are like everyone else: they mess up
I like this story. It sort of makes your hair stand on end. Yet it is everyday stuff – real-life “doing building work” where Is do not get dotted and Ts do not get crossed. The idea that it will all come to solicitors, barristers, adjudicators, or judges doesn’t enter into the head. So let me tell you the story and then tell you about some twiddly legal bits.
Keith Warner, boss of Ginger Group Hair & Beauty Salons, decided to open a shop at the £1.7bn Westfield shopping complex in west London. The centre was due to open on 30 October 2008. So that was the key date to get his new shop fitted out by, ready for your cut and blow dry. The holding company for Ginger Group is Estor, the fit-out contractor was Hub Design, and the price was £129,500 plus VAT. The contract covered seven pages.
Pause, please. It takes an awful lot of talent to get a shopfitting spec and bid and the contractual twiddlybits into seven pages.
But there we are. A start was made in late September, to have the fitting out done in about four weeks, ready for the grand opening of the shoppers’ paradise. “Matters did not proceed smoothly,” said the judge.
Pause again. It takes an awful lot of talent to get a £150k shopfitting job done in four weeks. It only takes a little loss of concentration for the lads not to turn up, or the wiggle pins to be the wrong size, or the new flooring to go walkabout – and then the high-speed trolley comes off the rails. Which is what it did. By 17 October, the hair and beauty boss and Hub and Multifit, the key subcontractor, were in “high-level talks”. Hub offered to quit. Multifit fancied taking over. The Ginger Group boss liked the sound of that.
But this is commerce and construction in a mad dash. Hub went; Multifit sent an urgent quotation to complete the works to Mr Warner – or was it to his company, Estor, or was it to Ginger Group, or was it to Ginger Westfield? Messy. That’s what happens every day in real-life commerce. The credit check was done on the hoof and the form said credit facilities meant acceptance of Multifit’s trading terms. Never mind thinking about them – did anyone even see them? So, with seven days to go to the champagne pouring, Mr Warner said go. And Multifit did. And they got it all done by the deadline. Well done, chaps.
Then came the usual real-life disputes.
The resin floor was said to be iffy. Multifit paid the flooring firm but it said the company was not its subcontractor, it was Mr Warner’s subcontractor. None of this is out of the ordinary.
When there is a shopfitting dispute, the usual place for fisticuffs is adjudication. The idea is to decide whether the resin floor really did have defects and whether Multifit should pay the price for them. Easy stuff. Cheap to fathom. A binding decision, then all over. Get on with hair and beauty.
Dear me, no. All that real-life stuff got in the way. Instead of cutting to the chase, a row developed about the adjudication. Well, said the owner of the shop, you are adjudicating against the wrong firm. They began an expensive satellite argument about who was in contract with whom. Even if that could be figured out, there followed an argument about whether the contract, if any, was “in writing” (you can’t adjudicate unless there is a contract in writing). And even if that could be figured out, who on earth was in contract with the resin flooring subcontractor?
This seems to beg for a commentary on “what should have been done to avoid this mess?” That would be a waste of breath. The truth is, this is the way of things. You can invent all the forms of contract you want, lecture folk on “offer and acceptance” or whatever, but it makes no odds. The adjudication became complicated, but complicated adjudications are now ordinary. And when they argued about the outcome, they did the ordinary thing of going to a High Court judge. Oh, said the judge, this is complicated, so we need a full trial … its still ordinary, honest.
This is everyday stuff. Most – yes, most – relationships wobble and some go off the rails. So, if you are in the middle of a dispute or claim and are upset or angry, you have joined a big club.
Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple