Rohde, Martin (trading as M Rohde Construction) v Markham-David, Nicholas
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACKSON |
| Judgment Date | 20 March 2006 |
| Neutral Citation | [2006] EWHC 814 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 20 March 2006 |
| Docket Number | Case No: HT 01 407 |
[2006] EWHC 814 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
Mr Justice Jackson
Case No: HT 01 407
MISS ELIZABETH REPPER appeared on behalf of M. ROHDE CONSTRUCTION
MR NICHOLAS MARKHAM-DAVID, the defendant, appeared in person.
This Judgment is in five parts, namely: Part 1 —Introduction; Part 2 —The Facts; Part 3 —The Present Proceedings; Part 4 —Does the defendant have a real prospect of successfully defending the claim? Part 5 —In the exercise of its discretion, should the court set aside the default Judgment?
Part 1 —Introduction
This is an application to set aside a default judgment, obtained by the claimant. The claimant in these proceedings is Mr Martin Rohde, trading as "M Rohde Construction". The defendant is Mr Nicholas Markham-David.
The present litigation arises out of an adjudication, which took place in 2001. The statutory provisions, which apply in that adjudication, are contained in the Housing Grants, Construction and Regeneration Act 1996 ("the 1996 Act"). Section 107 of the 1996 Act provides:
"(1) The provisions of this Part apply only where the construction contract is in writing, and any other agreement between the parties as to any matter is effective for the purpose of this Part only if in writing.
The expressions "agreement", "agree" and "agreed" shall be construed accordingly. (2) There is an agreement in writing—
(a) if the agreement is made in writing (whether or not it is signed by the parties),
(b) if the agreement is made by exchange of communications in writing, or
(c) If the agreement is evidenced in writing.
(3) Where the parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.
(4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement."
Section 108 of the 1996 Act provides:
"(1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this Section.
For this purpose the word "dispute" includes any difference.
(2) The contract shall
(a) enable a party to give notice at any time of his intention to refer a dispute to adjudication;
(b) provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of such notice;
(c) require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred;
(d) allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;
(e) impose a duty on the adjudicator to act impartially; and
(f) enable the adjudicator to take the initiative in ascertaining the facts and the law.
(3) The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The parties may agree to accept the decision of the adjudicator as finally determining the dispute ……
(5) If the contract does not comply with the requirements of subsections(1) to(4), the adjudication provisions of the Scheme for Construction Contracts apply."
Section 115 of the 1996 Act provides:
"(1) The parties are free to agree on the manner of service of any notice or other document required or authorised to be served in pursuance of the construction contract or for any of the purposes of this Part.
(2) If or to the extent that there is no such agreement the following provisions apply.
(3) A notice or other document may be served on a person by any effective means.
(4) If a notice or other document is addressed, pre-paid and delivered by post—
(a) to the addressee's last known principal residence or, if he is or has been carrying on a trade, profession or business, his last known principal business address, or
(b) Where the addressee is a body corporate, to the body's registered or principal office,
it shall be treated as effectively served."
The Scheme for Construction Contracts, which is referred to in Section 108(5) of the 1996 Act, is set out in the Schedule to the Scheme for Construction Contracts, (England and Wales) Regulations 1998. In this judgment I shall refer to the Scheme for Construction Contracts as "the Scheme".
Paragraph 19 of the Scheme provides:
"1. The adjudicator shall reach his decision not later than-
(a) twenty eight days after the date of the referral notice mentioned in paragraph 7(1), or
(b) forty two days after the date of the referral notice if the referring party so consents, or
(c) such period exceeding twenty eight days after the referral notice as the parties may, after the giving of that notice, agree …
(3) As soon as possible after he has reached a decision, the adjudicator shall deliver a copy of that decision to each of the parties to the contract".
Finally, I should say that Judge Thornton is the assigned judge in this litigation and he has made the previous orders. The change of judge to myself occurred because of listing difficulties last week. Following the recent reforms, I should perhaps make it clear that this court will (so far as practicable) reclassify and reassign cases at short notice, in order to avoid standing any case out of the list.
After these introductory remarks, I must now turn to the facts.
Part 2 —The facts
In 1998 the defendant was living with his wife and children at 22 Hamilton Road, Salisbury. The defendant and his family owned another property, which was formerly a farmhouse, known as Upper Skenchill in Herefordshire. The defendant intended to renovate this property and then sell it.
In October 1998 the defendant engaged the claimant to carry out building works to Upper Skenchill. The claimant proceeded with those works but there appear to have been differences between the parties, concerning quality of work, delays and so forth. There were also differences between the parties concerning the valuation of variations. The defendant made payments on account, but the claimant contended that substantial additional sums were due.
During 1999, whilst the building works were in progress, the defendant's marriage came to an end. The defendant and his wife separated. In due course the defendant moved to a new address in Salisbury, namely 3 Wordsworth Road. The defendant's wife also moved to a new address in Salisbury, namely 12 Wyndham Road.
Although the defendant's home address changed, his place of business remained the same. The defendant continued to manage a quarry known as Callow Quarry at Buckholt in Herefordshire.
In March 2001 the claimant decided to refer to adjudication his claim for the balance of monies owing to him. On the 30 th of March 2001 Messrs Castons (a firm of quantity surveyors acting for the claimant) served or purported to serve a notice of adjudication upon the defendant. The address to which Castons sent the notice of adjudication was 22 Hamilton Road, Salisbury.
Thereafter the adjudication proceeded. Mr Andrew Pennifold was appointed adjudicator. Mr Pennifold received submissions and evidence from the claimant. On the 18 th of May 2001 he promulgated his decision, which was that the defendant owed to the claimant the sum of £37,589.00.
During the course of the adjudication, various communications were sent to the defendant at 22 Hamilton Road, Salisbury. All such communications were returned as undelivered. This is evidenced, for example, by Castons' letters to the adjudicator, dated 17 th April, 8 th May and 23 rd May 2001.
The defendant asserts that he never received any documents relating to the adjudication. He was in dispute with the tenants who were occupying 22 Hamilton Road, because those tenants had failed to pay rent. Furthermore, the breakdown of the defendant's marriage was acrimonious and his former wife was not passing documents to him.
The defendant has submitted evidence concerning his personal and business affairs. I will not embark upon an analysis of that evidence. On the evidence as it now stands, I am quite satisfied that I should proceed on the basis that the defendant was unaware of the adjudication. This, however, is not a final decision, which will be binding upon the parties at trial. At trial there will no doubt be further evidence about these matters and both parties can be cross-examined.
Let me now return to the narrative. The adjudicator's decision was not implemented. The defendant did not make any further payments to the claimant, beyond the sums which had previously been paid on account.
The claimant was aggrieved by the defendant's non-payment. Accordingly he commenced the present proceedings.
Part 3 —The present proceedings
By a claim form, issued in the Technology and Construction Court on 7 th November 2001, the claimant claimed against the defendant the sum of £37,528.00 as awarded by the adjudicator.
The claimant applied for and obtained an order for service by an alternative method. On the 18 th of January 2002 this court made an order for service by the following means: "Service to be effected by process agents by hand delivering to a person appearing to be in occupation of 22 Hamilton Road, Salisbury Wilts and a further copy of the documents to 12 Wyndham Road, Salisbury Wilts."
The proceedings were duly served...
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