Billingford Holdings Ltd & BFL Trade Ltd v SMC Building Solutions Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 08 March 2019 |
| Neutral Citation | [2019] EWHC 711 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 08 March 2019 |
[2019] EWHC 711 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
7 Rolls Buildings Fetter Lane
Mr Justice Fraser
Mr Maynard, instructed by Huggins Lewis Foskett LLP, appeared on behalf of the Claimants
Ms Drake, instructed by Palmers LLP, appeared on behalf of the First Defendant
TRANSCRIPT OF PROCEEDINGS
(AS APPROVED)
This is an application that is made today for urgent interim relief by the claimants, or applicants; they are Billingford Holdings Limited and BFL Trade Limited. They have today issued proceedings, and seek an order against two defendants. The first is SMC Building Solutions Limited, and the second is Mr Nigel Anthony Dight. Mr Dight is an adjudicator and this application is in respect of an adjudication which is ongoing. This application was issued and served after close of business yesterday evening upon both the defendants. Ms Drake has come to court today, on short notice, but has had no chance to provide any responsive evidence. Today is 8 March 2019 and I am just going to explain the background to the adjudication.
SMC Building Solutions, the first defendant, issued a notice of intention to refer a dispute to adjudication on 21 February 2019. It followed that up with a referral on 25 February 2018. Mr Dight was appointed the adjudicator to determine that dispute and in a letter of 25 February 2019 he notified the parties of his appointment. He was nominated for appointment by the President of the RICS — the Royal Institution of Chartered Surveyors — who had nominated him to be the adjudicator under system that is called RICS Dispute Resolution Services. This part of the RICS act for and on behalf of the President of the RICS.
In the letter dated 25 February 2019 from Mr Dight to which I have referred, he advised the parties that he accepted the nomination and he was willing to act as the adjudicator in respect of the dispute between the parties, which arose out of a construction contract. He enclosed his terms and conditions for acting as the adjudicator. He also set down a timetable for the adjudication. That letter also identified that the referral notice had to be served not later than Thursday 25 February 2019. As I have identified, it was actually served in accordance with that timetable.
What Mr Maynard, for the claimants, seeks from this court today is an injunction by way of an order preventing both the adjudicator (the second defendant) and the other party to the adjudication (the first defendant) from continuing that adjudication. It is clear, therefore, that the claimant seeks the court to interfere in an ongoing adjudication. The short notice which was provided to the defendant, whereby they were provided at 8:40pm last night with the relevant documents, has led to Ms Drake appearing today before me on this application to resist the urgent interim relief which the claimants seek.
Although I have found both parties' skeletons very useful (and they have both been prepared in short order, Ms Drake's in particular) and the authorities that have been brought to my attention are of course useful, in my judgment, based on the approach of the Technology and Construction Court to adjudications and previous reported decisions in this field, they rather miss the central point. I am just going to explain what that point is.
It is only in extremely rare cases that the TCC will interfere by way of injunctive relief, or the grant of declarations under CPR Part 8 that are akin to injunctions, in ongoing adjudications. In Dorchester Hotel v Vivid Interiors [2009] EWHC 70 (TCC) Coulson J, as he then was, said at [15] that the court did have jurisdiction to issue injunctions or declarations akin to injunctions in respect of ongoing adjudications, but that such an injunction would only rarely be granted. He also said at [17]:
‘Accordingly, for these reasons I have concluded that the TCC does have the jurisdiction to consider the application for a declaration in this case, but I make it clear, as I hope I made clear in argument, that such a jurisdiction will be exercised very sparingly. It will only be appropriate in rare cases for the TCC to intervene in an ongoing adjudication. It is important that wherever possible, the adjudication process is allowed to operate free from the intervention of the court. Applications of this sort will be very much the exception rather than the rule.’
Although it is the case that Edwards-Stuart J in Twintec Ltd v Volkerfitzpatrick Ltd [2014] EWMC 10 (TCC) the judge said that the court did have jurisdiction to grant an injunction and in that case the injunction was granted, that does not mean that the approach of the court has been diluted. In my judgment, the dicta of Coulson J, as he then was, remains a correct statement of the approach that the court will take in terms of being reluctant to interfere in ongoing adjudications. Indeed I have applied that dicta myself in Lonsdale & Bresco [2018] EWHC 2043 (TCC). At [16] I said:
‘I do not wish parties to adjudications generally to read any element of this judgment and conclude that CPR Part 8 represents a short cut available to them in conventional cases or as any encouragement to seek injunctions to restrain ongoing adjudications. Such proceedings...
To continue reading
Request your trial
-
Table of cases
...[1966] 2 QB 221 III.26.159 Billam v Cheltenham BC (1984) 3 Con LR 99 II.10.162 Billingford Holdings Ltd v SMC Building Solutions Ltd [2019] EWHC 711 (TCC) III.24.61 Billion Star Development Ltd v Wong Tak Chuen [2014] HKCFA 12 II.8.10 Billyack v Leyland Construction Co Ltd [1968] 1 WLR 471 ......
-
Statutory adjudication
...Plc v E Squared Ltd (Unreported, TCC, HHJ Wilcox, 16 Feb 2000). 357 Billingford Holdings Ltd v SMC Building Solutions Ltd [2019] EWHC 711 (TCC). 358 Fastrack Contractors Ltd v Morrison Construction Ltd [2000] BLR 168 at 178 [31], per HHJ hornton QC; Whiteways Contractors (Sussex) Ltd v Impr......