Gerard Ferns v Keith West
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 21 January 2019 |
| Neutral Citation | [2019] EWHC 141 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | No. HT-2018-000291 |
| Date | 21 January 2019 |
[2019] EWHC 141 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY & CONSTRUCTION COURT (QBD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mr Justice Fraser
No. HT-2018-000291
Mr A Kearney (instructed by Ward Williams Associates) appeared on behalf of the Claimants.
Mr M Finn (instructed by Kitsons LLP) appeared on behalf of the First and Second Defendants.
The Third Defendant did not appear and was not represented.
This is an adjudication enforcement brought by Mr and Mrs Ferns against three defendants. I am going to clarify this further, but I will first explain that the proceedings are issued against Mr Keith West, the first defendant, Mr Adam West, the second defendant, and Ms Linda West, the third defendant, trading as Haven Build. Mr Finn has appeared before me today on behalf of the first and second defendants. The third defendant, Ms West, has failed to acknowledge service and Mr Kearney, for Mr and Mrs Ferns, seeks judgment in default of acknowledgement of service against her. I am going to put that point off to one side and come back to it at the end, after I have given judgment on the substantive issues against Mr Keith West and Mr Adam West.
The background is as follows. Mr and Mrs Ferns entered into a contract with an entity called Haven Build, who are described in the contract simply in that way, as “Haven Build”. It is accepted by Mr Finn that Haven Build is a trading name of Mr Keith West and Mr Adam West but is not a limited company. It is therefore what is sometimes described as a firm, although he says it is more properly and accurately described as a general partnership. On either description, it does not have its own separate legal personality.
The contract is on a standard form issued by the Federation of Master Builders. It is a domestic contract for minor building work. It is dated 27 September 2014 and the actual contract had a contract sum of £137,000 plus VAT, which was a modest difference with the quotation which had been provided by Haven Build. That is as a result of Mr and Mrs Ferns entering into a direct contract with Anglian Windows for the provision of double glazing. The works were to have been carried out at 98 Honiton Road, Exeter, which was a house into which Mr and Mrs Ferns, together with their young family, were intending to move, to be their house after their existing property had been sold. The contract was for limited building works which they wished to have performed before that move took place.
It is safe to say that the course of the building works was not a smooth one. In the adjudication referral, Mr and Mrs Ferns described how they were excluded from even visiting the site by Haven Build during the construction phase, which was for reasons, they were told, connected with insurance. They were, for that reason, not able to consider the works as they were performed. It was their case in the adjudication that they were provided with regular fallacious claims by Haven Build for the payment said to be due for works which Haven Build had either failed to complete, completed to a very poor and/or unsafe standard, and charged to them at vastly inflated amounts. They paid numerous invoices, as they describe it, in good faith and because they were told if they did not pay, Haven Build would withdraw from site. Whatever the rights and wrongs of that situation, Haven Build did in fact withdraw from site on 13 March 2015, which Mr and Mrs Ferns maintain was prior to completion of the works. Defective and incomplete works were left behind.
The contract undoubtedly has an adjudication provision within it. It is an express legal right in any event to parties to a construction contract to be able to adjudicate at any time, but residential occupiers have an exemption. As Mr Kearney identifies, this was a residential occupier case, but the parties had expressly agreed that adjudication be available. There was an express term for the ability to adjudicate. The exception in the Housing Grants Reconstruction and Regeneration Act 1996 for the right to adjudicate if it is a residential property is not therefore of relevance. In this case, clause 28.2 of the contract included adjudication and this states at 28.23:
“Although condition 28.22 applies, you and we agree that adjudication under this clause will apply to this contract.”
When Mr and Mrs Ferns decided to take their dispute with Haven Build further, they engaged a firm of claims consultants called Ward Williams Associates. On 29 June 2018, a letter was sent to Ward Williams Associates by Mr Turner of Kitsons LLP, who describe themselves in that letter, in the header, as “Our client: Haven Build”, and Mr Turner stated in that letter:
“As you have already stated, this dispute has now crystallised and in our view the dispute should now move into adjudication.”
He then referred Ward Williams to certain provisions of the contract dealing with adjudication and says:
“Can we also agree that our respective clients will enter into a separate agreement that the adjudicator's decision will be final and binding?”
There is no doubt when he wrote that letter that, by his client, he referred to Haven Build, the firm. In the answer to that letter, which was 4 July 2018, Ward Williams Associates wrote to him and again used, at the top of the letter, “Our client: Mr and Mrs Ferns; Your client: Haven Build”, and pointed out that Mr and Mrs Ferns were not prepared to depart from the usual position of adjudication and quoted the following sentence:
“Our client is not prepared to enter into a separate agreement that the adjudicator's decision will be final and binding.”
That led to a letter back, 19 July 2018, from Mr Turner, again describing Haven Build as “our client”. He said:
“Thank you for your letter of 4 July 2018. If your clients are not prepared to be bound by the adjudication process, we see little point in going down that route. It seems as if the adjudication process found in favour of our client, your clients would not agree to be bound by such a decision. It appears to us the only way of resolving this dispute is by way of court proceedings. That is the route we are instructed to take.”
Whatever the scope of the instructions at that point, Kitsons LLP have not issued court proceedings on behalf of Haven Build and on 22 July 2018, Ward Williams Associates wrote back and said:
“My client is not prepared to agree to your suggestion that both parties accept an adjudicator's decision as final and binding and thus deny either party the ability to pursue the matter to ultimate conclusion under arbitration or court proceedings. As you have been previously advised, it was our client's intention to refer this matter to adjudication and in connection, therefore, please find attached a...
To continue reading
Request your trial
-
Table of cases
...[2014] NICh 4 II.11.52, II.13.182 Fernkiln pty Ltd v australian Building Industries pty Ltd [1999] QCa 179 II.6.56 Ferns v West [2019] EWhC 141 (TCC) III.24.07, III.24.105 Ferntree homes pty Ltd v Bohan [2002] FCa 16 III.16.16 Ferrara Quay Ltd v Carillion Construction Ltd [2009] BLr 367 II.......
-
Statutory adjudication
...BLR 348 at 354 [20], per HHJ hornton QC; Speymill Contracts Ltd v Baskind [2010] BLR 257 at 260 [10], per Jackson LJ; Ferns v West [2019] EWHC 141 (TCC) at [5], per Fraser J; ICCT Ltd v Pinto [2019] EWHC 2134 (TCC) at [34]–[37], per Waksman J. Compare Picardi v Cuniberti [2003] BLR 487. Whe......