M Rohde Construction v Nicholas Markham-David
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE THORNTON |
| Judgment Date | 26 March 2007 |
| Neutral Citation | [2007] EWHC 1408 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 26 March 2007 |
| Docket Number | Case No: HT-01–407 |
[2007] EWHC 1408 (TCC)
IN THE HIGH COURT OF JUSTICE
IN THE TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Thornton
Case No: HT-01–407
MR RHODE appeared in person.
MR MARKHAM-DAVID appeared in person.
HIS HONOUR JUDGE THORNTON QC
Introduction
This judgment relates to the trial of the action brought by Mr Rhode to enforce an adjudicator's decision. The application for summary judgment was heard by Jackson J who gave permission to defend. The judgment, [2006] EWHC 814 (TCC), is to be found on the TCC section of the BAILLI website. This case provides a good example of why a court should always be vigilant when asked summarily to enforce an adjudicator's decision and, where necessary, grant permission to defend the action so as to enable the action to be tried out with oral evidence. In this case, as will be seen, enforcement was refused once the action was tried out.
Factual Background
Mr Rhode is a builder who is a sole trader and who carried out some refurbishment work for, or on the instructions of, Mr Markham-David in 1999 to a property near Salisbury, Wilts. Both parties represented themselves and the dispute has become something of a grudge match between them. The contract was an informal contract which was evidenced in writing but contained no adjudication clause.
The property in question was owned at the material time by Mr Markham-David's wife from whom he had separated. He was living in a house in the same locality, in Hamilton Road, Salisbury, which was owned by his daughter and from whom he was occupying the house rent-free. Mr Markham-David was arranging for the work to be carried out on his wife's property to assist her before she put it on the market. He, meanwhile, was living in his daughter's house whilst sharing it with his two children who were dividing their time between their two parents' respective residences. Mr Markham-David was also working from home, managing a quarry that was also owned by his daughter.
The work in question went reasonably well until the two men fell out towards the end of the contract. This falling out was largely over the question of the value of the work and as to what sum, if any, remained for payment by Mr Markham-David. After somewhat desultory attempts to settle this dispute, the parties had an angry parting of the ways on the doorstep of Mr Markham-David's house on a Sunday afternoon in November 1999. Evidently, Mr Rhode had turned up, unannounced, on the doorstep in order to discuss his outstanding claim and an angry scene developed which culminated in the police being called. On their arrival, they invited Mr Rhode to leave Mr Markham-David's house and advised him not to return.
There was no direct contact between the two men thereafter for many months. Mr Rhode stated in evidence that he did try to telephone Mr Markham-David from time to time in this period but never got an answer. It is unlikely that he telephoned very often since he stated that he had used Mr Markham-David's mobile number but, so he also stated, he never was put through to his message or answering service. This suggests that he did not phone Mr Markham-David since, as is common knowledge, most mobiles have such a service and Mr Markham-David confirmed in evidence that his mobile did have one. Thus, had Mr Rhode telephoned him, he would have obtained Mr Markham-David's message service.
At some stage, in early 2001, Mr Rhode went to see a firm of claims' consultant quantity surveyors called Castons who advised him to claim the outstanding unpaid balance of his account from Mr Markham-David in an adjudication. Since there was no adjudication clause in the contract between the two men, Mr Rhode had to resort to his statutory right to an adjudication which was available to him since the contract was a construction contract that was evidenced in writing.
On 30 March 2001, some sixteen months after the breakdown of their relationship, a letter was sent on Mr Rhode's behalf by Castons to Mr Markham-David enclosing an adjudication notice. The letter was sent special delivery to the address in Hamilton Road, Salisbury, Wiltshire where Mr Markham-David had been living at the time that the men's contractual relationship broke down. According to Mr Markham-David's evidence, he had moved away from that address some thirteen months earlier, in February 2000, to another address in Salisbury and he had never received Castons' letter. Since this is a material fact, I make it clear that I accept that evidence and I find that Mr Markham-David left his daughter's house in Hamilton Road, Salisbury and moved into a different house nearby in February 2000. Mr Markham-David did not leave a forwarding address with the Post Office or with the new tenants at Hamilton Road once they had subsequently moved into his daughter's house. In consequence, Mr Markham-David never received any letter from Mr Rhode, Castons or the adjudicator concerning the adjudication in the period between February 2000 and sometime after the delivery of the adjudicator's decision.
Castons applied to the ACA an adjudication nominating body, for the appointment of an adjudicator who appointed an adjudicator. The adjudicator, once appointed, apparently sent to Mr Markham-David, to the same address in Hamilton Road, Salisbury by special delivery a letter informing him of his appointment and he included a copy of Mr Rhode's adjudication notice in the letter. This letter was returned to the adjudicator by the Royal Mail since it had not been signed for when the postman had attempted to delivery it. The adjudicator then wrote to Mr Rhode stating:
“As you are aware, we have sent various documents to Mr Markham-David by special delivery including a notice to refer matters to adjudication dated 30 March 2001. As Mr Markham-David has not signed for any special delivery letters, the Royal Mail have returned this letter to ourselves, the sender. We believe in accordance with [section 115(4) of the [HCGRA] that effective service upon Mr Markham-David has taken place.”
The only evidence of service or attempted service of the...
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Table of cases
...2458 (TCC) II.12.51, II.12.79 Rhesa Shipping SA v Edmunds (the “Popi M”) [1985] 1 WLR 948 III.26.239 Rhode v Markham-David (No.2) [2007] EWHC 1408 (TCC) III.24.20, III.24.100, III.24.105 Rhodes v Richards [1999] EWCA Civ 650 II.9.31, II.9.38 Rhodia Chirex Ltd v Laker Vent Engineering Ltd [2......
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Statutory adjudication
...notices, see Housing Grants, Construction and Regeneration Act 1996 (UK) section 115. See also Rhode v Markham-David (No 2) [2007] EWHC 1408 (TCC). 145 Discain Project Services Ltd v Opecprime Development Ltd [2000] BLR 402 at 404, per HHJ Bowsher QC. However, it is seemingly permissible fo......