Herschel Engineering Ltd v Breen Property Ltd (No. 2)
| Jurisdiction | England & Wales |
| Judgment Date | 14 April 2000 |
| Date | 14 April 2000 |
| Court | Queen's Bench Division (Technology and Construction Court) |
QUEEN'S BENCH DIVISION
Before Mr Justice Dyson
Construction contracts - adjudication decision neither binding nor final
The principles applicable to arbitration proceedings did not apply to adjudication proceedings taking place pursuant section 108 of the Housing Grants, Construction and Regeneration Act 1996, as the determination of an arbitration was final and binding on parties while a decision of an adjudicator under that Act was not final and could be overtaken by a decision of the county court.
Neither a nomination of an adjudicator nor his decision on the dispute under the 1996 Act could give rise to an estoppel preventing a party from referring the dispute to the court or an arbitration, if there was a provision for arbitration, or a waiver of such a right.
Mr Justice Dyson so held in the Queen's Bench Division giving a summary judgment for the claimants, Herschel Engineering Ltd, against the defendants, Breen Property Ltd, for Pounds 17,355 plus value-added tax, pursuant to a decision of Ms Victoria Russell, an adjudicator appointed under the 1996 Act, published on March 10, 2000.
Mr Sean Brannigan for the claimants; Mr Adrian Davies for the defendants.
MR JUSTICE DYSON said that typically an arbitrator would have the same jurisdiction to decide disputes as a court.
The power of an arbitrator, as that of the court, was to determine the dispute that had been referred to it, such determination being final and binding on the parties, subject to a possible challenge in the courts.
The court would not allow a claimant to have the dispute determined both by an arbitrator and the court and in a typical case, the claimant was required to chose the tribunal before which he wished to bring that issue.
When one turned to adjudication, the position was different in that the decision of the adjudicator was not final: see paragraph 23(2) of the Scheme of Construction Contracts (England and Wales) Regulations (SI 1998 No 649)...
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The Trustees of The Marc Gilbard 2009 Settlement Trust v OD Developments and Projects Ltd
...correct that, in general terms, a party to a construction contract has a right to adjudicate at any time: see Herschel Engineering Ltd v Breen Property Ltd (No. 1) [2000] BLR 272 and Connex South Eastern Ltd v MJ Building Services Group PLC [2004] BLR 333. Those cases also say that this gen......
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NAP Anglia Ltd v Sun-land Development Company Ltd
...enforcement of the judgment should be stayed 53 It is clearly established by the decision of Dyson J (as he then was) in Herschel Engineering Ltd v Breen Property Ltd [2000] BLR 272, that a party to a construction contract may refer the dispute to adjudication even though the same dispute i......
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Kier Regional v City & General (Holborn)
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