“2.4 Article 7 has not been deleted and therefore Clause 9.2 of the Conditions applies. The Adjudicator is not named and the nominator of the Adjudicator is not stated. The Referring Party therefore selects from the list included in the Contract the Royal Institution of Chartered Surveyors to nominate an Adjudicator.”
“3.0 Nature of Redress The Referring Party seeks a decision from the adjudicator that 3.1 The Final Certificate is to be corrected to certify that the gross sum of£3,670,692.19 and a net sum after deducting previous payments of£1,702,266.47 plus VAT as applicable and that sum is not to be reduced by the notice to pay less nor for any other reason or in all matters such other sum as the Adjudicator may decide and such sum shall be paid forthwith by the Responding Party to the Referring Party. 3.2 The Date for Completion is to be extended to the30 October 2012 or such other period or date as the Adjudicator may decide. 3.3 The Responding Party shall forthwith pay interest to the Referring Party on the sum decided at 3.1 above at such rates and on such sum or sums as the Adjudicator may determine. 3.3 (sic) The Responding Party shall pay the Adjudicator’s fees and expenses.”
“Clause 1.7 Address for service of notices etc. by the Parties Employer University of Brighton Mithras House Lewes Road Brighton BN2 4AT” (“the Mithras House address”) Address for service of notices etc. by the Parties Employer University of Brighton Mithras House Lewes Road Brighton BN2 4AT” (“the Mithras House address”) 21. and “Clause 1.8 Electronic Communications All communications are to be in 22. writing unless agreed otherwise”
“Issue of Final Certificate …. .2 Not later than 5 days after the issue of the Final Certificate the Party by whom the balance is stated to be payable (“the Paying Party”) shall give a notice to the other Party which shall, in respect of the balance stated as due, specify the amount of the payment proposed to be made, to what the amount relates and the basis on which the amount has been calculated. .3 The final date for payment of the balance shall be 28 days from the date of the issue of the Final Certificate.” .3 The final date for payment of the balance shall be 28 days from the date of the issue of the Final Certificate.”
“Adjudication … 9.2 If a dispute or difference arises under this Contract which either Party wishes to refer to adjudication, the Scheme shall apply, subject to the following : .1 for the purposes of the Scheme the adjudicator shall be the person (if any) and the nominated body shall be that stated in the Contract Particulars…”
“The objects of a clause such as this were well stated by Mr Justice Mocatta in The Himmerland… They are (a) to provide some limits to the uncertainties and expense of arbitration and litigation; and (b) to facilitate the obtaining of material evidence. To these I would add (c) to facilitate the settling of accounts for each voyage as and when they fall due.”
“17. Conclusive evidence clauses were originally devised and inserted in commercial documents to obviate cumbersome and painstaking inquiries to prove out-standings on running accounts. Having received the judicial imprimatur both in England (Bache & Co (London) Ltd v Banque Vernes et Commerciale de Paris SA[1973] 2 Lloyd’s Rep 437 ) and in Australia (Dobbs v The National Bank of Australasia Limited(1935) 53 CLR 643 ), the clauses are now used pervasively in all manner of documentation by all manner of businesses in common law jurisdictions. … 18. The real foundation for the legal efficacy of such a clause is contract. It can be cogently argued that if parties expressly agree on the modalities for determining a matter, such an agreement should be upheld in the absence of any relevant public policy considerations. Indeed, this is the very basis on which the court recognises and gives effect to arbitration agreements, conclusive certificates of engineers and architects found in construction contracts and experts’ decisions, among others…”
“The fact that a particular construction leads to a very unreasonable result must be a relevant consideration. The more unreasonable the result, the more unlikely it is that the parties can have intended it, and if they do intend it the more necessary it is that they shall make that intention abundantly clear.”
“(18) Mr Mort further submitted that it was the referral notice that completed the commencement of proceedings. If that were right, then cl. 30.9.3 would not be applicable to the first reference, let alone the existing reference. Mr Mort referred me to a passage in Keating on Building Contracts 7th Edn., 2001) p. 791, paragraph 18-430 to the effect that proceedings are commenced in adjudication by a written notice to refer to adjudication. He submitted that that passage was wrong. I reject that submission. For the purposes of cl. 30.9.3, which provides a short time period with a strict time limit, failure to comply with which leads to serious consequences analogous to the consequences of limitation provisions, ‘commencement’ must, in my judgment, refer to service of the notice of intention. Delay in the appointment of an adjudicator could lead to failure on the part of an applicant to serve a referral notice within 28 days after the issue of the final certificate through no fault on his part. It would take clear words to that effect to lead to such a conclusion. Clause 30.9.3 refers also to the commencement of arbitration proceedings. For the purposes of limitation, arbitration proceedings before a sole arbitrator are commenced by the giving of a notice to concur in the appointment of an arbitrator (see Mustill and Boyd Commercial Arbitration (2nd Edn. 1989) p. 169). In my judgment, it is clearly contemplated by cl.30.9.3 that arbitration can be commenced before the appointment of the arbitrator; and the same, mutatis mutandis, applies in relation to the appointment of an adjudicator.”
“3.15 It is impossible to over-emphasise the importance of the notice of adjudication. It is the cornerstone of both the adjudicator’s jurisdiction and the scope and limit of the referring party’s claim in the adjudication. Although the significance of the notice of adjudication is dealt with in greater detail at paragraphs 7.47-7.60 below, it is important to note at this stage that the notice must identify carefully the dispute and the nature of the redress sought. Numerous problems in adjudication and adjudication enforcement have arisen out of the referring party’s failure to provide an adequate notice of adjudication, and his subsequent attempts to make good that omission in the referral notice (Part 1, paragraph 7) and other documents served in the adjudication. The courts have made it plain that this is not a legitimate approach… . 7.57 The importance of ensuring that the notice of adjudication properly describes the relevant dispute is even more pronounced if the dispute relates to the contents of a final certificate. Many of the JCT Standard Forms of Building Contract contain detailed provisions relating to the issue of a final certificate, which, unless challenged within a set period, becomes conclusive evidence on a variety of potentially significant matters. If a final certificate is challenged, then the challenger is required to issue a notice of adjudication within a specified period (not usually longer than 28 days), and it therefore becomes critically important for the challenger to ensure that every element of his challenge to the final certificate is enshrined in the notice of adjudication; otherwise, if a point of challenge is omitted from the notice, the final certificate will become conclusive evidence in respect of that omitted matter. In such circumstances, there is a potential benefit to be gained by the party who is content with the final certificate in taking technical points about the notice of adjudication and/or the conduct of the adjudication to which it gives rise because, if such arguments are successful and, say, the decision is a nullity, the final certificate will not have been challenged in time. ... 7.58 Accordingly, subject to the points noted above, the general rule is that it is the notice of adjudication that defines the limits of the adjudicator’s jurisdiction, so later documents, and in particular the more detailed referral notice, cannot extend the adjudicator’s jurisdiction beyond that which is set out in the notice of adjudication … .”
“... the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices).”
“….Generally, apart from exceptional cases such as Cubitt [Building Interiors Ltd v Fleetglade Ltd [2007] 110 Con LR 36] this will mean that the court will treat service of the referral within that period as being mandatory so that the failure by the referring party to serve it in that period will be regarded as making the referral a nullity as not being what the parties intended. In such cases the adjudicator will have no jurisdiction derived from that referral.”
“56. ... I have considered whether it is so de minimis that the Court should not take it into account, or make some exception or allowance. 57. However, as I read Lewison LJ’s judgment in the Court of Appeal, the rationale of treating the receipt by the court of the required documents as sufficient and transferring to the court the risk of loss or delay thereafter…is that it is unfair to visit such risk on the claimant after he has done all that he reasonably could do to bring the matter before the court for its process to follow. Lewison LJ expressly described what had to be established by the claimants : that the claim was a) to be delivered in due time to the court office, accompanied by b) a request to issue and c) the appropriate fee. In my judgment, the failure to offer the appropriate fee meant that the claimants had not done all that was required of them; and they had left it too late to correct the error, which was a risk they unilaterally took.”
“although clause 41A sets out a mandatory timetable, it is a timetable that needs to be operated in a sensible and businesslike way.”
“…. operating clause 41A and its mandatory timetable in a sensible and businesslike way means that where there has been a failure to comply with the detailed and procedural aspects of cl. 41A, the : courts should be slow to find that a failure to comply with a detailed procedural aspect of contractual provision renders the relevant part of the process a nullity so as to deprive the adjudicator of jurisdiction. Objectively that cannot have been the intention of the parties or of the provisions of the Scheme. This is consistent with the position that I held applied under the Scheme in OSC Building Services Ltd v Interior Dimension Contracts Ltd[2009] EWHC 248 (TCC) .”
“…first, to inform the other party of what the dispute is; secondly, to inform those who my be responsible for making the appointment of an adjudicator, so that the correct adjudicator can be selected; and finally, of course, to define the dispute of which party is informed, to specify the redress sought, and the party exercising the statutory right and the party against whom a decision may be made so that the adjudicator knows the ambit of his jurisdiction.”
“….It can be worthwhile for a challenger in such circumstances to issue both a notice of adjudication and a claim form (or arbitration notice) at the same time, to ensure that an error by the adjudicator during the reference does not create an insurmountable procedural difficulty.”
“36. …. The argument ... is that … clause 18B of the sub-contract conditions permit a party to refer a dispute to adjudication on one occasion only. If the party seeking adjudication….does not follow through the reference, that is the end of the matter. The right to adjudication of the dispute notified in the adjudication is lost forever. Therefore, argues Mr Wilmot-Smith, Galliford having allowed the adjudication before Mr Klein to lapse could not commence a fresh adjudication in respect of the same subject-matter. 37. The court was initially attracted by Mr Wilmot-Smith’s submission. The proposition that a claimant can allow an adjudication to lapse because it disapproves of the appointed adjudicator and then start a fresh adjudication before a different adjudicator is not an appealing one…Mr Marrin has persuaded me, however, that there are formidable difficulties in the case which Lane advances. First it does sometimes happen that adjudication is not pursued further after the preliminary steps have been taken. There is no authority to suggest that as a consequence the claimant loses its right to adjudicate that dispute for all time. 38. Secondly, both the Blue Form sub-contract, the ICE Adjudication Procedure and the Scheme recognise a right to restart an adjudication in a variety of circumstances…. It is possible to think of many situations, not all of which are provided for by express terms, in which the adjudication procedure would be thwarted if there were no right to re-start an abortive adjudication. For example, suppose there is a postal delay which prevents the referral documents being served within two days as required by paragraph 4.1 of the ICE Adjudication Procedure. It cannot be right that the claimant’s entitlement to adjudicate the dispute is irretrievably lost. 39. Mr Wilmot-Smith seeks to overcome these difficulties by arguing that the claimant only loses the right to adjudicate if he deliberately and without good reason fails to serve referral documents by the due date. In my view, however, it is quite impossible to imply a term of this nature either into the present contract or into the 1996 Act and the Scheme. Furthermore, if such an elaborate provision were to be implied, an expensive factual investigation would be required in some cases in order to determine whether the claimant had or had not lost the right to adjudicate.”