IDE Contracting Ltd v RG Carter Cambridge Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 16 January 2004 |
| Neutral Citation | [2004] EWHC 36 (TCC) |
| Date | 16 January 2004 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-03–454 |
[2004] EWHC 36 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Havery Q.c.
Case No: HT-03–454
Jonathan Lee (instructed by Wedlake Bell for the Claimant)
Nicholas Dennys Q.C. (instructed by Greenwoods for the Defendant)
This is an application on the part of the claimant to enforce the award of an adjudicator appointed under the provisions of the Housing Grants, Construction and Regeneration Act 1996. The application was made under part 8 of the Civil Procedure Rules on the basis that there was unlikely to be a dispute of fact. There is, indeed, no dispute of primary fact, though as will appear there is a dispute as to an inference. By the application, the claimant sought permission to enter judgment in respect of the award and permission to enforce the judgment. The application has proceeded on the basis that it is an application for summary judgment under part 24.
By his award dated 18 th November 2003 the adjudicator, Mr. John Smalley, directed the defendant to pay to the claimant forthwith the sum of £120,147.69 plus interest in the sum of £9,357.66, together with further interest at the rate of £29.62 a day for each day that IDE (sic) failed to make payment in accordance with the decision. He also ordered the defendant to pay his fee of £7,668.15 within seven days of the date of the decision. VAT was to be added to all those sums as appropriate. The total amount claimed before me was £161,229.61, including VAT. There is no dispute as to the correctness of the calculation of that figure on the basis of the award.
The defence is that the adjudicator had no jurisdiction to make the award. By its written response, dated 15 th October 2003, to the claimant's claim before the adjudicator, the defendant submitted on a number of grounds that the adjudicator had no jurisdiction to act in this matter. It stated in the first paragraph of its response that it specifically reserved its right to raise the issue of jurisdiction during both the adjudication and in any subsequent court or arbitral proceedings. It went on:
R G Cambridge Limited take part in this adjudication in response to this adjudication is expressly subject to this reservation (sic).
The adjudicator was asked to decide that he had no jurisdiction. He considered the points raised and decided that he did have jurisdiction. He gave his reasons in writing for that decision on 30 th October. The following day, the defendant, having good reason to believe that Mr. Smalley had not been duly appointed, withdrew from the adjudication.
Mr. Dennys relied on two grounds in support of his contention that the adjudicator lacked jurisdiction to make his award. The first was that Mr. Smalley had not been duly appointed.
The contract between the parties provided for adjudication as follows:
Any dispute arising for the adjudication's shall be in accordance with the provision of section 108 of the housing grants, construction and regeneration act 1996 and the scheme for construction contracts made thereunder and shall be referred to the following named person:
Stephen Pratt LLB (Hons) MSc FRICS FCIOB ACI Arb: Foundation Court 2 Victoria Square, Victoria Street, St Albans Hertfordshire AL1 3TS.
In the event that they are unable/unwilling to act, the president or a vice president of the Royal Institute of chartered Arbitrators shall nominate an Adjudicator.
The syntactical and other infelicities are in the original.
The facts as they emerged before me are that Mr. Stephen Pratt was telephoned on 12 th September 2003 by Christine Holland, who worked for the practice of Stuart C. Holland, Chartered Quantity Surveyor, acting for the claimant, to enquire as to his availability to act in an adjudication involving R G Carter Ltd. He replied that he would not be able to accept the appointment as he had work commitments that would take him overseas. In an e-mail dated 15 th January 2004 to Sarah Elliott, a solicitor acting for the claimant, Mr. Pratt explained that he had had a full diary to the end of September 2003 and had planned business and holiday commitments that took him overseas in October 2003. He went on to state that he had been unable to take the appointment for those reasons. It appears from an e-mail dated 23 rd October 2003 that Mr. Pratt would have been back at work on 2 nd November and would have been able to act as adjudicator after that date.
The notice of adjudication was dated, and received by the defendant on, 29 th September 2003. The accompanying letter from Stuart C. Holland stated "The Chartered Institute of Arbitrators will now be requested to nominate an adjudicator". It was common ground that that was the institute mentioned in the adjudication clause of the contract, but there misnamed. It was only in the notice of adjudication, at paragraph 10, that it was stated that Mr. Stephen Pratt had declined to act as adjudicator. Mr. Jason Hinch, a senior quantity surveyor employed by the defendant, did not want an adjudicator selected at random, and wrote to Mr. Holland on 2 nd October 2003 suggesting Mr. G. Brewer and Mr. C. Dancaster as adjudicators. He offered further discussion on the point. That offer was not taken up. On 3 rd October Mr. Holland wrote back saying "As stated in our letter of 29 th September, an application has already been made to the Chartered Institute of Arbitrators". On the same day the Chartered Institute of Arbitrators nominated Mr. Smalley. Mr. Smalley wrote to the parties on 6 th October 2003 in confirmation of his appointment.
The statutory provisions as to the appointment of adjudicators are contained in the schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998 (S.I.1998 No. 649). The relevant provisions are as follows:
2. – (1) Following the giving of a notice of adjudication and subject to any agreement between the parties to the dispute as to who shall act as adjudicator –
(a) the referring party shall request the person (if any) specified in the contract to act as adjudicator, or
(b) if no person is named in the contract or the person named has already indicated that he is unwilling or unable to act, and the contract provides for a specified nominating body to select a person, the referring party shall request the nominating body named in the contract to select a person to act as adjudicator
…..
(2) A person requested to act as adjudicator in accordance with the provisions of paragraph (1) shall indicate whether or not he is willing to act within two days of receiving the request.
…..
3. The request referred to in paragraphs 2, 5 and 6 shall be accompanied by a copy of the notice of adjudication.
…..
6. – (1) Where an adjudicator who is named in the contract indicates to the parties that he is unable or unwilling to act, or where he fails to respond in accordance with paragraph 2(2), the referring party may –
…..
(b) request the nominating body (if any) referred to in the contract to select a person to act as adjudicator.
Mr. Lee submitted that those provisions had been complied with. Mr. Pratt indicated on 12 th September that he was unwilling or unable to act. Thus the condition contained in paragraph 2(b) was fulfilled. On a literal reading of the provisions, that submission cannot be gainsaid. But it seems to me not to be in accordance with the general intendment of the provisions. What is intended, in my judgment, is that the notice of adjudication comes first. Then the referring party is to request the person specified in the contract to act as adjudicator, unless he has already indicated to the parties that he is unwilling or unable to act. The request must doubtless be in writing since it must be accompanied by a copy of the notice of adjudication. The person specified must indicate within two days whether or not he is willing to act. If he indicates that he is not, then provided that that indication is made to all parties the referring party may proceed under paragraph 6(1)(b) to request the nominating body to select a person to act as adjudicator. What happened here is that no request at all was made under paragraph 2(a). The procedure was bypassed. And it is in my judgment implicit in paragraph 2(b), as it is explicit in paragraph 6, that the unwillingness or inability of the specified person to act should be indicated to all parties.
If Mr. Lee's construction of the scheme were correct, it would be open to an intending claimant who did not want the specified person to act as the adjudicator to ascertain, without the knowledge of the other party, when the specified person would not be available, and to serve the notice of adjudication at that time. By the time the notice of adjudication was...
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