Lee v Chartered Properties (Building) Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 25 June 2010 |
| Neutral Citation | [2010] EWHC 1540 (TCC) |
| Date | 25 June 2010 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-10–123 |
[2010] EWHC 1540 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Before: Mr Justice Akenhead
Case No: HT-10–123
The Claimant in person
Lucie Briggs (instructed by Prettys) for the Defendant
Hearing dates: 18 June 2010
Mr Justice Akenhead:
Introduction
This claim arises out of an adjudicator's decision dated 16 November 2009 in favour of the Defendant, Chartered Properties (Building) Ltd (“Chartered”) against Lorraine Lee. By that decision Ms Lee was to pay £79,929.30 plus interest within seven days. Instead of seeking to enforce the decision in the usual way, Chartered went down the route on 8 January 2010 of serving a Statutory Demand on her with a view to making her bankrupt. She applied on 25 January 2010 to have that Demand set aside on the basis that she was disputing the validity of the decision. On 7 April 2010, Ms Lee issued proceedings in the TCC to that effect. Ms Lee has throughout represented herself and, allowing for the fact that she is not, apparently, legally qualified, she has presented her arguments in writing and orally in a coherent, comprehensible and articulate manner. She makes a number of challenges to the validity of the decision, the most relevant being related to whether a settlement of the various claims and cross claims was achieved prior to the adjudication reference, whether the adjudicator was properly appointed and whether the adjudicator produced his decision within the requisite time period.
The Contract
By a contract dated 28 January 2008, Ms Lee engaged Chartered to carry out refurbishment works on the basement and ground floors at 3, Lyndhurst Road, London NW3. The Contract was in the standard JC T Minor Works Building Contract Form (2005) and the Architect was named as David Mercer of DVM Architects. The Contact was £239,662.45 and the works were due to be carried out between 21 January and 1 August 2008. Article 6 provided for adjudication. The adjudication clause provides that if a dispute or difference arises and a party wishes to refer it to adjudication, the statutory Scheme for Construction Contracts should apply and that the RIBA should be the nominating body for the appointment of any adjudicator.
The History
The works duly commenced in January 2008 and were certified to be practically complete on 17 September 2008. The Architect issued his Interim Certificate No. 8 in November 2008 which released retention, certifying payment of just over £6000. Ms Lee provided a notice of proposed deductions which led to her declining to pay the certified sum. On 21 January 2009 Chartered submitted its final account. The total net sum claimed after allowing for sums previously paid was just over £79,000 plus VAT. Ms Lee has said in her Witness statement of 25 May 2010 that she discussed the final account with the Architect on the 3 February 2009 and found it to contain numerous errors and duplicate demands for payment and was generally inflated. She then left it to the Architect to discuss matters with Chartered.
Although the detailed history of these discussions is not before the Court, it appears that the Architect's and Chartered's discussions got to a stage at which Chartered was prepared to drop its claim provided that Ms Lee dropped her cross claims against it. The Architect relayed this to Ms Lee in early May 2009 who e-mailed him on 7 May 2009 as follows:
“Paul [Ms Lee's husband] told me that you had a conversation with Ian Reeves the other day.
If he will put in writing to you that Chartered… will not pursue any further payments for work undertaken at 3 Lyndhurst Road, I will write to you confirming that we will not action any claim against his company for monies we believe are due to us.”
This e-mail was copied on that day to Chartered by the Architect. The reply from Mr Reeves of Chartered was dated 8 May 2009:
“I am happy with this based on the following. That both letters are sent to your office and that you effect the exchange and witness that the letters have been exchanged and agreed by both parties.”
Although little if any communication took place for 2 to 3 months after this, so far as I can ascertain, and, although the letters referred to in these e-mails were not written or exchanged, Chartered purported to refer the dispute between the parties to adjudication. The dispute was said to have been caused by the failure of the Architect to issue written instructions, payment certificates and extensions of time and failing to ascertain the value of the final account. Ms Lee's immediate reaction by e-mail on the same day was to refer to Chartered's e-mail of 8 May 2009 to the effect that neither party would pursue the other for any alleged outstanding monies. Mr Reeves wrote to Ms Lee to the effect that he had chased the Architect to organise an exchange of letters at his office but that he was ignored. Ms Lee replied to the effect that as far as she was concerned the parties “had an agreement in place, confirmed in writing by both parties”; the letters were still to be exchanged but that was a formality. She asked why, if there was no response from the Architect, Mr Reeves had not contacted her directly. Mr Reeves replied on 21 August 2009 that he had asked Mr Mercer to prepare a letter which both parties could sign but that he had been ignored. He said that he would be prepared to consider a settlement if his costs in the sum of £20,000 were paid. Mr Mercer later wrote to Ms Lee on 8 September 2009 in the following terms:
“I would like to respond to the allegations raised by Chartered Properties in their referral notice. I would first however like to record my surprise and disappointment that Chartered should have precipitated Adjudication action when I firmly believed that both parties had agreed to a settlement where there was no financial implication on either side. I have received no correspondence from Chartered to the effect that they were dissatisfied with the agreement, which both parties had actually agreed to by way of e-mail. I naturally assumed that as agreement in principle had been reached, a formal exchange of letters was not a top priority for either side.”
An adjudicator was appointed by the RICS but he resigned when he realised that it was the RIBA who was supposed to have appointed. Chartered served a second notice dated 18 September 2009 referring the dispute to adjudication and Mr Kevin Slegg but this adjudication was abortive because Chartered failed to serve the Referral Notice on time.
The Adjudication
On 30 September 2009, Chartered sent to Ms Lee a third notice that it was intending to refer the dispute to adjudication. On the same day, Chartered delivered to the RIBA an application for an adjudicator to be nominated. There is an issue between the parties (to which I will return below) as to whether that application was delivered before the third notice was sent to Ms Lee. Mr Slegg was again nominated by the RIBA. Ms Lee e-mailed Mr Slegg on 5 October 2009 as follows:
“There are a number of areas of concern I wish to raise prior to the adjudication process starting in earnest as these, I believe, do have an implication as to whether or not the process should continue.
In the Notice of Adjudication dated 30th September 2009, the Referring Party has failed to state when the dispute arose. I understand from the published guidelines on this matter, this document must adhere to certain mandatory statements and this Notice fails to do so.
Secondly, the Notice of Adjudication dated 30th September 2009, lists 8 items which the Referring Party alleges are in dispute. In their Notice of Adjudication dated 17th August 2009, the exact number of items and exactly the same alleged disputes were listed.
Notwithstanding the fact that the Referring Party aborted the first Adjudication process, the matter had gone far enough the matters to be looked at closely by the Adjudicator, including the service of both the Referral Notice and Response from me and a number of directions given by the Adjudicator in relation to certain matters. It is therefore my contention that the 8 items listed in this current Adjudication have been subject of a previous Adjudication.
Furthermore, of the 8 items listed as allegedly being in dispute, none are and the Notice of Adjudication fails to illustrate where any dispute has arisen.
On the basis of the above facts, I must inform you that for the 3rd time, the Referring Party has failed to follow the procedures laid down for the process of Adjudication to take place and I therefore respectfully suggest that the matter cannot proceed.
I await your reply and in the meantime reserve my position as to jurisdiction in this matter.”
The Adjudicator's decision sets out at least parts of the Referral. In her Reply to Referral Notice, Ms Lee referred to the settlement agreement which she said had taken place in early May 2009. She then addressed the merits of the claim made against her in some detail concluding that, allowing for various sums said to be due to her, the sum of over £32,000 was due to her. It needs to be borne in mind that, although Ms Lee had some limited legal advice, said to have cost about £500, she conducted the proceedings before the adjudicator herself.
The adjudicator e-mailed the parties on 3 November 2009:
“Under the current timetable I am due to reach my Decision by Monday 9 November 2009. However, I would be grateful if the Parties would agree to extend this until Friday 13 2009.”
Ms Lee responded on the same day confirming her agreement to an extension to Friday 13th November 2009. I understand that Chartered agreed also. However on 12 November 2009, he wrote...
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Ecovision Systems Ltd v Vinci Construction UK Ltd
...The second is that a decision reached out of time is probably a nullity (see Akenhead J in Lee v Chartered Properties (Building Ltd) [2010] EWHC 1540 (TCC) at paras. 28–29 and Coulson on Construction Adjudication, 2 nd ed. paras. 20.04–20.06). The argument is that the initial direction give......