Adjudication – Referral notice – Time limit – Claimant referring dispute concerning construction contract to adjudicator by e-mail – Claimant sending hard copy of referral notice and related documentation on following day – Adjudicator making award in claimant’s favour – Claimant applying for summary judgment to enforce decision – Defendant challenging enforcement of decision – Whether adjudicator making award outside time limits – Whether adjudicator entitled to rule on liquidated damages – Whether judgment contrary to principles of natural justice – Claim allowed
On 31 January 2013 the claimant sent an email to the adjudicator which was described in a covering letter as “the referral” of a contractual dispute between the parties. On 1 February 2013, the claimant sent a hard copy of the referral notice together with supporting documentation. On that date the adjudicator wrote to the parties informing them of the time-line for the adjudication process, specifying that he would give his decision on 1 March 2013. The adjudication proceeded and the adjudicator made an award in favour of the claimant on 1 March 2013.
The defendant challenged that decision on the basis, inter alia, that the date of the referral was 31 January 2013, so that the provisions of paragraph 19(1) of the Scheme for Construction Contracts set out in the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations 1998, which provided that an adjudicator “shall reach his decision not later than 28 days after the date of the referral notice mentioned in paragraph 7(1)” had not been complied with.
The claimant sought to enforce the adjudicator’s decision by an application for summary judgment. The defendant argued that, under the scheme for construction contracts, time began to run from 31 January 2013 so that the adjudication should have been made by 28 February. The claimant contended that time ran not from 31 January but from 1 February 2013 so that the decision had been issued in time. Alternatively, if time would otherwise have run from 31 January 2013, the time for issuing the decision had been effectively changed to 1 March 2013.
Held: The claim was allowed.
A referral notice that was not accompanied by copies of relevant extracts from the contract and other documents on which the referring party intended to rely was procedurally defective but was not automatically outside the scheme and might be sufficient to start time running for the purposes of the time limit set out in paragraph 19(1) of the scheme set out in the 1998 Regulations: PT Building Services Ltd v ROK Build Ltd [2008] EWHC 3434 (TCC) applied.
In the present case, the defendant had correctly contended that the e-mail sent to the adjudicator on 31 January 2013 was in a form that was appropriate for a referral notice within paragraph 7(1) of the scheme and that a referral notice which was not accompanied by copies of the relevant extracts from the contract or other documents upon which the referring party intended to rely was not automatically outside the scheme as being procedurally defective. The notice had identified the material facts upon which the claim was based and the nature of the dispute. Therefore the referral notice sent by email on 31 January was sufficient to start time running for the purposes of paragraph 19(1). However, the defendant’s full participation in the adjudication process, in accordance with the timetable set out by the adjudicator, was to be taken as acquiescence of the timetable laid down, which included the issuing of the decision on 1 March 2013. It was not open to the defendant to do nothing until the decision had been given on that date and then contest the decision on the ground that it had been given a day too late. In all the circumstances, the claimant was entitled to enforce the adjudicator’s decision: AC Yule & Son Ltd v Speedwell Roofing & Cladding Ltd [2007] EWHC 1360 (TCC) and Letchworth Roofing Co v Sterling Building Co [2009] EWHC 1119 (TCC) considered.
Riaz Hussain (instructed by Collyer Bristow) appeared for the claimant; Rebecca Drake (instructed by Fenwick Elliot) appeared for the defendant.
Eileen O’Grady, barrister
