Eek a mouse!

The latest one is ABB Zantingh Ltd vs Zedal Building Services. It's an adjudication case (number 48 in our series), and I will tell you about it in a minute.

But first, a question; why is ABB, this $24bn-turnover, 165 000-employee megacorp, so terrified of adjudication? Its UK construction arm seems ever so keen to make sure that disputes with its building subcontractors are wrested from the arms of adjudicators.

ABB argues that because it is in the process engineering business, and its operations include oil, gas, petrochemical and electrical activities, it falls outside the scope of the Construction Act.

That process industry, which does masses of everyday construction work, sold a great line to parliament three years ago. Somehow it persuaded Westminster that the process boys were so well-organised that no regulation of any of their contracts and subcontracts was needed. No, no, don't laugh. It really did.

And in this recent case, you will see how hard ABB tries to run away from the tiny mouse of adjudication. The UK arm of ABB, with its £1bn turnover, jumps on the table, even leaps up to swing from the chandelier, rather than be anywhere near this scary little mouse.

This is what happened. Mirror Group Newspapers decided to build its own electricity generating station at its printing works in Watford and Oldham. It got Scottish & Southern Energy to organise all of this. SSE engaged ABB to design, build and maintain the two plants.

Why is this megacorp so terrified of adjudication? It jumps on the table to get away from this scary little mouse

ABB sublet the supply and installation of the electrical gubbins. Then, as in the best-regulated relationships, ABB had a hell of a row with its subcontractor. The sparks, Zedal Building Services, asked consultant James R Knowles to get the quarrel sorted; Knowles called for the referee. ABB jumped on the table.

The firm raises the same argument each time. ABB stabs a finger at an escape clause in the Construction Act. "Shoo! Shoo!" it shouts at the adjudicator. "You have no right to be here, no jurisdiction, you horrid little thing." Of its two previous adjudication enforcement cases on this argument, ABB won one and lost one. And, since the issue in this latest case was arguable, the two sides did something most sensible. They asked the appointed adjudicator to park himself in the changing room while the crucial question was decided by a short court hearing.

That crucial question focuses on the point that the Construction Act applies to all ordinary construction operations, apart from the "assembly and installation of plant on a site where the primary activity is power generation". In this case, the act does not apply and therefore adjudicators are banned.

Zedal was "installing", so that requirement was satisfied. The concept of "plant" was examined next. The stuff was cables, cable trays and cable ladders. Zedal said the construction industry would not recognise that as plant. His Honour Judge Bowsher could see that, but such items became part of plant once looked at overall. A drum of cable was just a piece of material until it was worked into or joined two pieces of plant, then it was plant. So the court was willing to look at the broader use of materials to decide their relationship with plant.

More difficult was the question of a "site" where the primary activity is power generation. Judge Bowsher would have quickly accepted that this work was outside the act if the power generators, once completed, stood in Oldham or Watford on an independent piece of land surrounded by a security fence. That would have been a site where the only activity was power generation. But the site was within the whole area occupied by Mirror Group, where it did all its colour printing.

ABB tried to say that a site was made within a site once a security fence hived off that lump of land. The judge explained that the exceptions in the act were in regard only to sites where the workplace had as its primary activity, for example, a power station. There was nothing that said a secondary activity such as power generation was exempt. It was, in his view, necessary to look to the nature of the whole site and ask what its primary purpose was: power generation or printing? It was printing. Therefore, the Construction Act applied and the adjudicator had jurisdiction.