The Claimant, Baldwins Industrial Services Plc, hired a 50 tonne crane for use on a building site by Barr Limited. Barr requested that Baldwins supply, and Baldwins did supply a crane operator. Baldwins allege that the crane had been damaged as a result of an incident on site on 19 December 2000. They claimed the cost of repairs and the value of lost hire charges. By a notice dated 20 July 2002 they referred that dispute to adjudication. The Adjudicator issued a Decision dated 24 August 2002 concluding that he had jurisdiction, and awarding Baldwins the sum of £149,212.52 together with transport costs, interest and £35,702.87 in respect of lost hire charges.

Joint Administrative Receivers were appointed in respect of Baldwins on 28 October 2002.

Baldwins sought to enforce the Adjudicator’s Decision that Barr should pay £185,385.39 plus interest and costs. Barr defended on the grounds that the Adjudicator did not have jurisdiction because the agreement between the parties was not a construction contract within the meaning of Section 104 (i) (a) of the Act. Further, if the agreement was a construction contract then Barr sought a stay of execution of the Judgment.

For the purposes of the Court application, Barr accepted that there was a contract between the parties, and that the contract incorporated the Construction Plant - hire Association (“CPA”) conditions of plant hire. The purchase order referred to the hire of a 50 tonne mobile crane, but there was no specific mention of a driver. However, clear references were made to the operator’s overtime rate. Nonetheless, Barr requested an operator and Baldwins supplied one.

The Judge held that it was common ground that a contract for plant hire was not a construction contract within the Act, but that provision of labour in connection with that plant hire might well bring it within the Act. She referred to the Court of Appeal case of Williams v West Wales Plant Hire Co. Limited and Others (1984) 1 WLR 1311, which made a clear distinction between a plant hire firm that hires out plant only, and one that hires out plant with an operator that will undertake the building operations.

HHJ Frances Kirkham held that the true position with regards to this agreement was that it was a contract for the hire of plant and labour for use in construction operations and was therefore covered by the Act. As a result, the Adjudicator had jurisdiction and the decision was enforceable.

However, as Administrative Receivers had been appointed, and the financial position of Baldwins was poor, Barr sought a stay of execution. Unlike previous cases requesting a stay on the basis of the financial position of the claimant Barr did not have a counterclaim. Neither had they commenced proceedings. Barr were ordered to pay the money into Court on the basis of certain conditions, one of which was the requirement for them to commence proceedings within one month of the order failing which the money would be paid out of Court to Baldwins.