Lobo v Corich & Anor [2017] EWHC 1438 (TCC)

Case No HT-2016-000359Case No HT-2017-000076[2017] EWHC 1438 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/06/2017
Before
MR JUSTICE STUART-SMITH
Between
Mr Emile LoboClaimantMr Robert CorichDefendant
Claim No.HT-2016-000359
And Claim No. HT-2017-000076Mr Robert CorichClaimantMr Emile LoboDefendant
Mr Riaz Hussain QC (instructed by Gordon Dadds LLP) for Mr Emile LoboMr Jeffrey Gruder QC & Mr Jeremy Brier (instructed by Osborne Clarke LLP) forMr Robert CorichHearing Hearing date: 7 June 2017
JudgmentMr Justice Stuart-Smith :Introduction
[1]There are two related actions and two related applications before the Court. They arise from a dispute under a contract to carry out building works that was made in writing on 19 May 2010.[2]The first action was issued by Mr Lobo (to whom I shall refer throughout as the Claimant) after a notice of termination had been sent on his behalf to Mr Corich (to whom I shall refer as the Defendant) in April 2014 and a certificate issued in February 2016 certifying sums due from the Defendant to the Claimant. When the certified sums were not paid, the Claimant referred the dispute to adjudication under the Scheme. In October 2016, the Adjudicator provided his decision, which was that the Defendant should pay the certified sums to the Claimant. When those sums were not paid, the Claimant issued his action (HT-2016-00359) on 23 December 2016 to enforce the adjudicator’s decision. On 9 February 2017 Jefford J gave summary judgment in favour of the Claimant for £630,022.66 plus indemnity costs of £30,811.00. On 28 February 2017, Coulson J made an interim charging order on 25 Gunter Grove, London SW10, a property of which the Defendant is the registered owner. The Claimant now applies for the interim charging order to be continued. That is the first application before the Court.[3]The Defendant took no part in either the adjudication process or the claimant’s action until March 2017, when he instructed solicitors to act on his behalf. On 27 March 2017 the Defendant’s solicitors took two procedural steps. First, they issued a Part 8 Claim (HT-2017-000076) claiming to set aside the adjudication decision on which the Claimant’s claim in his action is founded. Second, they issued an application in the Claimant’s action requesting that(i) the order of Jefford J be set aside;(ii) the interim charging order of Coulson J be set aside; alternatively(iii) there be a stay of execution pending the outcome of his application to set aside the order of Jefford J and/or the outcome of his Part 8 claim to set aside the Adjudication Decision on which the Claimant’s Action is founded. That is the second application before the Court.[4]The basis of the Defendant’s opposition to the Claimant’s application for the charging order to be continued and his claim that the adjudication decision and the order of Jefford J should be set aside appears from the Defendant’s Claim Form. It is that:
“… The Adjudication Decision was reached in breach of principles of natural justice, was procedurally unsound and unfair, in that it proceeded in the absence of the [Defendant] and without the [Defendant] ever having been made aware of any aspect of the Adjudication such that he played no part in it and could not put forward his case on the merits. …”
[5]The present hearing was to resolve these applications. In support of his position, the Defendant had submitted a witness statement asserting that he had no knowledge of the Adjudication or the Claimant’s Action until he was informed of the interim charging order by another mortgagee on or about 1 March 2017. Since this assertion was not accepted by the Claimant, the Defendant was called to give evidence and was cross-examined. I shall comment on his evidence later in this judgment when dealing with the factual background.[6]The issues as they stood at the end of the hearing can be summarised as being: i) Was the Defendant aware of the adjudication proceedings or the Claimant’s proceedings? ii) Were the adjudication proceedings properly constituted with due notice being given to the Defendant? iii) Were the Claimant’s proceedings duly served on the Defendant? iv) In the light of the answers to questions (i) to (iii): a) Should the adjudication decision be set aside? b) Should the judgment of Jefford J be set aside? c) Should the charging order be set aside?[7]For the reasons set out later in this judgment, I find in favour of the Claimant on both applications and answer the questions posed in [6(iv)] above: No.

The Factual Background

[8]The Defendant describes himself as a music publisher and property developer. He draws no distinction between property development and contracting to carry out building works for other people. He lives a relatively peripatetic lifestyle, having property both in the United States and in the United Kingdom and travelling frequently between those and other countries. He gave evidence in cross-examination about where he would either stay or live from time to time. I accept and bear in mind the submission of Mr Gruder QC that the Defendant travels a lot and has an association with a number of properties both here and abroad. Ultimately, Mr Gruder did not quarrel with a description of the Defendant as an educated and intelligent businessman. His conduct falls to be considered in that light.

The Contract

[9]The contract between the Claimant and the Defendant was made in writing on 19 May 2010 on the terms of the JCT Intermediate Building Contract, Revision 2 2009, which the parties signed. The parties were Dr C. E. Lobo and the Claimant as the Employer and the Defendant as the Contractor. The Defendant’s address was given in the Articles of Agreement as 7 Gunter Grove, London SW210 0UN. The Contract Sum was £683,000; the Architect was Mr Nicholas Blythe; the Base Date was 30 January 2010; and the date for completion of the works was “60 weeks”.[10]Clause 1-7 of the Contract Form provided: 1. Any notice or other communication between the Parties, or by or to the Architect/Contract Administrator or Quantity Surveyor, that is expressly referred to in the Agreement or these Conditions (including without limitation, each application, approval, consent, confirmation, counter-notice, decision, instruction or other notification) shall be in writing. 2. Subject to clause 1.7.4, each such notice or other communication and any documents to be supplied may or (where so required) shall be sent or transmitted by the means (electronic or otherwise) and in such format as the Parties from time to time agree in writing for the purposes of this Contract. 3. Subject to clauses 1.7.2 and 1.7.4, any notice, communication or document may be given or served by any effective means and shall be duly given or served if delivered by hand or sent by pre-paid post to: -1 the recipient’s address stated in the Contract Particulars, or to such other address as the recipient may from time to time notify to the sender: or -2 if no such address is then current, the recipient’s last known principal business address or (where a body corporate) its registered or principal office. 4. Any notice expressly required by this Contract to be given in accordance with this clause 1.7.4 shall be delivered by hand or sent by Recorded Signed for or Special Delivery post. Where sent by post in that manner, it shall, subject to proof to the contrary, be deemed to have been received on the second Business Day after the date of posting. -1 the recipient’s address stated in the Contract Particulars, or to such other address as the recipient may from time to time notify to the sender: or -2 if no such address is then current, the recipient’s last known principal business address or (where a body corporate) its registered or principal office.[11]Clause 8.4 of the Contract Form provided:
“-1 If, before practical completion of the Works, the Contractor: 1. … 5. fails to comply with clause 3.18, The Architect/Contract Administrator may give to the Contractor a notice specifying the default or defaults (the ‘specified default or defaults’). -2 If the Contractor continues a specified default for 14 days from receipt of the notice under clause 8.4.1, the Employer may on, or within 21 days from, the expiry of that 14 day period by a further notice to the Contractor terminate the Contractor’s employment under this Contract.”
[12]Clause 8.7 of the Contract Form provided: “If the Contractor’s employment is terminated under clause 8.4, …: .1 the Employer may employ and pay other persons to carry out and complete the Works and to make good any defects …; … .4 within a reasonable time after the completion of the Works and the making good of defects …, an account of the following shall be set out in a certificate issued by the Architect/Contract Administrator or a statement prepared by the Employer: -1 the amount of expenses properly incurred by the Employer, …; -2 the amount of payments made to the Contractor, and -3 the total amount which would have been payable for the Works in accordance with this Contract; 5. if the sum of the amounts stated under clauses8.7.4.1 and8.7.4.2 exceeds the amount stated under clause 8.7.4.3, the difference shall be a debt payable by the Contractor to the Employer or, if that sum is less, by the Employer to the Contractor. -1 the amount of expenses properly incurred by the Employer, …; -2 the amount of payments made to the Contractor, and -3 the total amount which would have been payable for the Works in accordance with this Contract;[13]Clause 8.2.3 provided that notices under section 8 should be given in accordance with clause 1.7.4. Accordingly, notice of breach under clause8.4.1 and notice of termination under clause8.4.2 had to be delivered by hand or sent by Recorded Signed for or Special Delivery post.[14]There was provision for Adjudication, it being common ground that the Scheme applies; and there was an arbitration clause, it being common ground that there is no arbitration on foot.[15]It was the Defendant’s evidence that the contract with the Claimant was the first time that he had used the JCT Intermediate Form of Contract. He said that he flipped through the contract early on but did not read it in any detail until later. Specifically, he said that he did not read Clause 8.7 until March 2017. Whether he troubled to read it or not, he signed the contract and there was nothing to prevent him reading the terms of the contract either before signing it or after he had agreed to be bound by them.

The Dispute and its progression

[16]On 26 March 2014 Mr Blythe wrote to the Defendant, referring back to matters outstanding from earlier letters and giving notice that the Defendant was in breach of clause 8.4.1 of the Contract. That letter was sent to the Defendant at 7 Gunter Grove, the address for service of notices provided for in the Contract, by special delivery in accordance with the requirements of clauses 1.7.4 and 8.2. It is the Defendant’s evidence that he did not look at the contract terms when he received this notice; but on 7 April 2014 he replied by email, using the email account Mainhorseuk@aol.com, disputing the assertions of default and breach. The Defendant said that he would be getting legal advice and wrote:
“With this letter … and all future correspondence can you please also send an email copy so we can respond promptly?”
The Defendant did not at any later date rescind the request that future correspondence should be sent by email as well as by any other means.[17]On 14 April 2014 the Claimant sent a letter terminating the contract to the Defendant. The letter was clear in stating that it was a notice of termination and that the Claimant would be employing others to complete the works. It concluded by saying that “We shall arrange for an account pursuant to Clause 8.7.4 to be prepared in due course.” In addition to being sent by post to 7 Gunter Grove, it was also sent to the Defendant at 183 Chatsworth Court, Pembroke Road, London W8. It was sent by Special Delivery, again in accordance with Clauses 8.2 and 1.7.4. It is apparent that the Claimant was concerned to ensure that the service was effective. He was aware that the Defendant also had a connection with 25 Gunter Grove because a photograph was taken from outside the building showing him inside. Copies of the termination notice were delivered by hand and posted through the letter box of 7 Gunter Grove, 25 Gunter Grove and 183 Chatsworth Court on 24 April 2014 by process servers. Delivery by hand in this way also complied with the requirements of clauses 8.2 and 1.7.4.[18]Meanwhile, on 15 April 2014 the Defendant emailed Mr Blythe, apparently referring to Mr Blythe’s letter of 26 March 2014 and proposing a without prejudice meeting. The email was sent by the Defendant from the MainhorseUK account and was copied to an additional email account (robcwork1@gmail.com) which, it is common ground, was and is another email account of the Defendant.[19]On 30 April 2014 Mr Blythe emailed the Defendant attaching a copy of the termination notice. In that email Mr Blythe said:
“I understand that the letter was delivered “by hand” to both 7 Gunter Grove … and 183 Chatsworth Court …. . In light of this letter, the contract is now terminated. Therefore, we will be in touch with you in due course in connection with the final account.”
[20]The Defendant replied by email from his robcwork1 email account on 1 May 2014 stating that he refuted the reasons for termination. In the email he also wrote:
“This email is the first time seen of the contents of the attached letter. Nothing has been received at Chatsworth Court except the letter you sent registered which was received early April and replied to accordingly. We are still awaiting a response in actual fact to that one from you. This of course is the address specified over two years ago and remains so today. Anything sent to other addresses such as 7 Gunter Grove which you have mentioned I would not receive as properties are either rentals, business associates or possibly jobs we have worked on in the past but do not have access to or regular access.”
[21]The Defendant’s evidence about this exchange was that he first received the notice of termination on 1 May 2014, that he did not look at the contract to see what the reference to clause 8.7.4 meant, and that he assumed that the “account pursuant to Clause 8.7.4” meant that he would receive an account within the next month or so. He accepted that, had he troubled to look at his contract, it would have been clear to him that an account pursuant to Clause 8.7.4 could not be produced until the works were finished by an alternative contractor. Given the state of the works, as appears from the evidence before the court, if the Defendant had troubled to look at the terms of Clause 8.7.4 he would have appreciated that the account would not be forthcoming for quite a while and that an assumption that he would receive it within the next month or so had no sensible basis.[22]There is no explanation before the Court for the reference to Chatsworth Court being an address that had “been specified over two years ago and remains so today”. Mr Gruder did not advance any submissions to the effect that Chatsworth Court had become contractually binding as the address for service of notices either in place of or in addition to the address given in the contract particulars (7 Gunter Grove); and there is no evidence to justify a finding that any such change was made. One thing, however, is clear: the Defendant was not saying that future correspondence should not be sent to Chatsworth Court.[23]The statement in the email that the Defendant would not receive things sent to “other addresses such as 7 Gunter Grove which you have mentioned” is entirely vague and unspecific apart from the mention of 7 Gunter Grove. The email was referring to Mr Blythe’s of 30 April which, as set out above, only referred to 7 Gunter Grove and 183 Chatsworth Court. It did not refer to 25 Gunter Grove; and no submissions were made to identify a mention of 25 Gunter Grove anywhere else so as to bring it within the Defendant’s phrase “other addresses … which you have mentioned”.[24]The Defendant’s evidence did not make the position any clearer. He merely asserted in his witness statement that “as of 1 May 2014, it had been made expressly clear to the Claimant, his legal advisors and the architect Mr Blythe that I would not receive mail at any address other than 183 Chatsworth Court and that anything sent to other addresses (including but not limited to 7 Gunter Grove) would not be received.” That goes beyond what the email said in two material respects. First, the email did not say anything about receiving mail at 183 Chatsworth Court in the future – only that the Defendant had received the one letter (of 26 March 2014) and that the address was in some unexplained way “specified”. Second, the reference to “other addresses … which you have mentioned” was further qualified by the statement that they were “either rentals, business associates or possibly jobs we have worked on in the past.”[25]The Defendant’s witness statement was vague to the point of being evasive about where he lived when in the United Kingdom between 2014 and 2017. The witness statement has the appearance of being substantially the work of lawyers, while no doubt being based upon information from the Defendant. For that reason, I do not hold the evasiveness against the Defendant personally since it may be attributable to decisions and drafting by others.[26]The Defendant attempted to provide further clarity in his oral evidence. When first asked, he said that the “other addresses” to which he was referring on May 2014 were other properties where he had done work or done planning for the Claimant. He said that he had done substantial works for a number of the Claimant’s properties. However, the evidence about 25 Gunter Grove was that it was not a place where the Defendant had done work for the Claimant. To the contrary: i) The Defendant has owned the property at all material times to the present day; ii) Although someone else put in a planning application for works on 25 Gunter Grove for him (the Defendant) in about 2011, he had not yet commenced doing any renovation works there by May 2014. He had never done (or caused to be done) any works or plans in respect of 25 Gunter Road for or on behalf of the Claimant; iii) If asked in about April 2014 he would have said that he lived there (though he might also have given an address in Westbourne Grove, another address which he could use); iv) He had and has a one room apartment, fitted out as a studio where he could work as well as keeping possessions in the loft. On his evidence he last stayed there in or about 2015, using it periodically between visits to Canada. He said that since then it has typically been rented out; v) His bank statements are sent to 25 Gunter Grove; vi) He is registered for Council Tax at 25 Gunter Grove, having registered in time for the Brexit referendum; vii) He has a resident’s parking permit for 25 Gunter Grove and has had one since before 2014. Information provided by the parties since the hearing, which I accept, includes that on annual renewals he submits his driving licence, which gives 25 Gunter Grove as his address, and his Council Tax Registration Document for 25 Gunter Grove. The RBKC website for obtaining either original or renewed residents’ parking permits makes clear the obvious point that they are for residents of the borough. The Defendant does not have any other residence in the borough; viii) After his return from New Zealand at about the end of September 2016 he said that he visited 25 Gunter Grove every two weeks or so, starting about two weeks after his return. Post would be left for him on a table and he would pick it up. It was not clear on his evidence how long this pattern continued but it certainly continued into and included December 2016.[27]The Defendant gave other evidence about where he had lived when in the United Kingdom, which was not entirely straightforward or easy to follow but which may be summarised as follows: i) He has not lived at Chatsworth Court since 2009, and it was not his residence: he had an office there. He stopped receiving any mail there by June/July 2014 at the latest; ii) The address he gives in his witness statement is not his property, nor is it a property where he has any formal status as resident. It is his current partner’s home; iii) There is no evidence to suggest that the Claimant either knew or should have realised that the address given on his witness statement is where he presently stays when in the UK. There is evidence that the Defendant and the Claimant met in 2015 on one or two occasions: there is no evidence that they discussed the dispute or the Defendant’s current living (or other) arrangements; iv) There was reference to another address, in Delaford Street, which the Defendant shared for a time with someone else. It is not suggested that the Claimant either knew or should have known that he lived there while he did.[28]Viewed in the context of the evidence about his ownership and use of 25 Gunter Grove up to and including the time of his email of 1 May 2014, I reject the suggestion that the email was intended to be a statement that post sent to 25 Gunter Grove would not be received by him. Had he said so clearly (which he did not) it would have been untrue: I find on the basis of his evidence he would have received post there regularly until a date which was later in 2014 and that, from then on, he would have received post there on his visits to the property.[29]Returning now to the chronology of events, the certificate pursuant to clause 8.7.4 of the Contract was dated 15 January 2016 and was sent to the Defendant under cover of letters from Mr Blythe dated 1 February 2016. The letters were sent by first class post to the Defendant at Chatsworth Court, 7 Gunter Grove and 25 Gunter Grove and were personally delivered by process servers at the same addresses on 12 February 2016.[30]The adjudication notice was served by hand on 30 September 2016 by process servers delivering it to 7 Gunter Grove, 25 Gunter Grove and 183 Chatsworth Court. It was also sent by email to four of the Defendant’s email addresses: rcorich@mac.com, rcorich@aol.com, rocwork1@gmail.com, and mainhorseuk@aol.com. The referral notice was served by hand on 7 October 2016 by process servers delivering it to the same three addresses. It was also sent by email to the Defendant’s four email addresses. The adjudicator’s decision was sent by post to 7 Gunter Grove on 20 October 2016 and by email to the Defendant’s four email addresses on 19 October 2016. Each of the emails referred to above had the subject line “Adjudication: Lobo v Corich” or “Adjudication: Lobo -c- Corich” or similar.[31]The Claimant’s action was commenced on 23 December 2016. The application for directions and summary judgment was issued on the same day. The proceedings and Notice of Application were served by hand by process servers delivering them by hand to 7 Gunter Grove and 25 Gunter Grove on 18 January 2017. They were also sent by email on the same day with the subject line “Lobo v Corich: Claim No. HT-2016-000359”. The documents sent by process servers and email included the Order for Directions made by Coulson J on 16 January 2017. That order gave directions for the service of evidence and for the hearing of the application for summary judgment to be heard on 8 February 2017.[32]On 8 February 2017 Jefford J gave summary judgment in favour of the Claimant. The Defendant did not appear and was not represented. Jefford J was informed of the steps that had been taken to serve and inform the Defendant. She was told that Mainhorse is a trading name “that appears to have been used from time to time by the Defendant”. A website extract was exhibited which appeared to show that it had been updated in 2016. By the time of the present application it appeared to have been updated in 2017. The Defendant’s explanation in evidence on the present applications was that the website was no longer used for active trading, had not been taken down, and updated automatically. There is no dispute, however, that the MainhorseUK email account remains in being and is accessible to and accessed by the Defendant.[33]Jefford J’s order granting summary judgment was sent on 15 February 2017 by post to the Defendant at 25 Gunter Grove and by email to the four addresses I have identified above under the subject line “Lobo v Corich”. The interim charging order made by Coulson J on 28 February 2017 was sent on 1 March 2017 by post to the Defendant at 25 Gunter Grove and by email to the same four addresses under the subject line “Lobo v Corich”. Electronic confirmation shows that the emails sent on 15 February and 1 March 2017 were delivered.[34]It is the Defendant’s evidence that he was contacted on 1 March 2017 by another mortgagee interested in 25 Gunter Grove who had been alerted to the charge obtained by the Claimant. It is apparent that he instructed solicitors by 6 March 2017 because they telephoned the Claimant’s solicitors on that date informing them that they were instructed and asking for copies of documents. The summary judgment bundle and the orders of Jefford J and the interim charging order were sent on 8 March 2017. There was a further telephone conversation between solicitors on 14 March 2017. On 23 March 2017 the Defendant’s solicitors wrote to the Claimant’s saying that they anticipated being instructed “very shortly”. The Defendant’s Part 8 Proceedings and application to set aside the orders that have been made thus far were issued on 27 March 2017.

Was the Defendant aware of the Adjudication Proceedings or the Claimant’s Action?

[35]The Defendant says that he was not aware of either until 1 March 2017. The strongest points in his favour are, first, that it would have been foolish for him to have buried his head in the sand until March 2017 if he knew what was going on; and, second, that his conduct in and since March 2017 is consistent with his account. There is no possibility of his being mistaken about whether March 2017 was the first time he was aware of what was going on. Accordingly, if I am to find that he was actually aware of the adjudication and proceedings, I would be making a finding that his evidence is knowingly untrue and that his Part 8 Claim and application to set aside are based upon a knowingly false basis.[36]There can be no doubt at all that the Defendant should have been aware of both the adjudication proceedings and the Claimant’s action. He accepted in evidence that he used all four email accounts in and from September 2016. He said that he had sent emails from the accounts but that he only replied to those incoming emails to which he needed to reply. Despite his evidence that each account would have received many emails, his answer about replying to emails as necessary begs the obvious question: how could he decide what to reply to without paying some attention to the incoming email? I am quite unable to accept that he decided which emails he wanted to reply to without at least looking at the subject line of the incoming emails. If he had done that, as I find that he did, he must have seen repeatedly in each of the four accounts emails whose subject line demanded further attention from him: they referred expressly first to the adjudication and then to the fact of the claim and, throughout, to Lobo v Corich (or similar).[37]Although his evidence concentrated on whether he had looked at emails on the four accounts in and after September 2016, I would reject without hesitation any suggestion that he did not look at his email accounts between 2014 and September 2016. His evidence that he didn’t use his emails so much for business during that period was unconvincing in the light of his evident recognition that the accounts included some emails to which he needed to respond, even if he preferred to use Whatsapp and other media. I am in no doubt that he checked his email accounts at least periodically throughout the period since 2014 as he did in and from September 2016.[38]This was not the first time that the Defendant had been engaged in litigation. He referred to having been involved in litigation some 4-5 times over a period of 5-6 years. In a previous action involving a Claimant called Woods, he had failed to attend the hearing to assess damages on 1 July 2011 at which HHJ Waksman QC sitting as a judge of the TCC had entered judgment for over £700,000 against him. A charging order to secure that judgment was made on 19 July 2011 over 25 Gunter Grove. What happened thereafter is not apparent, but the significance of those proceedings are two-fold. First, he knew that the consequences of non-engagement could be the entering of judgment in his absence; and, second, he knew that a judgment could lead to a charging order over 25 Gunter Grove. As an educated and intelligent businessman, the Defendant should have been fully aware of the need to identify potential disputes and litigation when checking his emails. The point is reinforced by the fact that, on his account, he had not told the Claimant his actual whereabouts and had not rescinded the request made in 2014 that all correspondence should be copied to him by email. Similarly, the fact of his previous litigation experience makes his evidence about not reading the terms of the contract when he received successively notices of breach and termination that made specific reference to clauses 8.4 and 8.7 even more surprising than it would have been in any event, particularly when it is remembered that he said in correspondence that he would be taking legal advice in response to the letter of 14 April 2014.[39]If, therefore, he did not become aware of the existence of the emails that were sent to him about the adjudication and the Claimant’s action, it can only have been on the basis of an extraordinarily casual laxness in failing to look even at the subject lines of emails with sufficient care to see what they were about, compounded by a complete lack of curiosity about the identity of the senders of emails where he did not know who they were or why they were emailing him on accounts that he still periodically used for business purposes.[40]Turning to the physical delivery of documents, I am in no doubt that he should have become aware of the documents that were served on him at 25 Gunter Grove in and from September 2016. I accept that there is the possibility of things going missing with an arrangement such as he described for the collecting of his post on his visits to the property; but there was nothing in his evidence to suggest that there was a widespread loss of post; and there is no reason why each and all of the adjudication notice, the referral notice, the claim form and the order of Jefford J with accompanying documents should have gone missing.[41]Taking his evidence as a whole, I stop just short of being satisfied to the requisite standard that the Defendant is lying. However, I am satisfied that most if not all of the adjudication and litigation documents that were delivered to 25 Gunter Grove were there to be collected by him in accordance with the practice he described; and I am equally satisfied that the emails I have listed above were all present in his email accounts on his periodic use of each of those accounts. I reject the suggestion that he did not see the emails in his inboxes. At best for him, he chose not to look and see what they were about. It is not necessary to find precisely how or why he did not look at either the physical documents or the emails; but I am satisfied that his failure to do so was the result of a conscious decision, in the case of the emails, not to open them and, in the case of the physical documents, not to look at them. I also reject the suggestion that he neither saw nor picked up the physical documents at 25 Gunter Grove: he may not have picked them up, but they were there to be seen and, if he did not do so, it was as a result of a conscious sifting process.

Were the Adjudication Proceedings Properly Constituted with Due Notice Being Given to the Defendant?

[42]I have set out the relevant terms of the Contract at [10] above. Adjudication Notices and Referral Notices do not fall within clause 1.7.4 as there is no express requirement relating to them. In fact they are not expressly referred to in the Intermediate Form of Contract at all; all that is done is to incorporate the terms of the Scheme by clause 9.2 with no further reference to the service of documents in the adjudication. There is no evidence of any separate agreement between the parties about service of documents in adjudication. S. 115(3) of the Housing Grants, Construction and Regeneration Act 1996 therefore requires service “by any effective means”. It is well established that this does not incorporate the requirements of the CPR in relation to service of documents for the purposes of legal proceedings. Furthermore, “effective service” does not of itself mean that the party to be served must come to know of the adjudication: if a notice or other document is addressed, pre-paid and delivered by post to the addressee’s last known principal residence it shall be treated as effectively served. The requirement for effective service under the scheme is the same as the provision under clause 1.7.3 that notices may be given or served “by any effective means”. In addition, the clause provides that notice shall be duly given if delivered by hand to the recipient’s address stated in the contract particulars or to such other address as the recipient may from time to time notify to the sender. Therefore, the request of “effective service” is the same whether it arises under the Intermediate form of JCT Contract or, as I think, pursuant to the Act.[43]In my judgment the Adjudication Notice and Referral Notice were effectively served and the adjudication was properly constituted with due notice being given to the Defendant. The Defendant had not notified any other address to the Claimant as provided for by clause 1.7.3.1 and so 7 Gunter Grove remained the contractual address for service of notices despite the Defendant saying in his email on 1 May 2014 (after the contract had been terminated) that he would not receive things sent there. To meet the pragmatic difficulty raised by that email, the Claimant also served the Notices on 25 Gunter Grove which was an effective address for service because(a) it was the Defendant’s most consistent and reliable address throughout the relevant period, for the reasons given above;(b) on a reasonable understanding of the Defendant’s email of 1 May 2014 he had not attempted to assert that he would not receive correspondence there (and, if he had done so, the assertion would have been untrue); and(c) the Defendant received them, even though he took the conscious decision not to look at them.[44]In addition, the Claimant acceded to the Defendant’s request that all correspondence should be copied to him by email and, if it were necessary to do so, I would hold that the sending of the Notices to him by email at his request was sufficient to comply with clause 1.7.2, being the electronic supply of documents as requested by the Defendant, no further agreement on format being necessary. It would constitute effective service under the Act.

Were the Claimant’s Proceedings Duly Served on the Defendant?

[45]Pursuant to CPR 6.9, and because the Defendant is an individual, the proper place of service was his “usual or last known place of residence.” As a matter of fact, the last place of the Defendant’s residence of which the Claimant knew was 25 Gunter Grove. It was also, for the reasons set out above, the place with which the Defendant had the closest residential connection in late 2016 though he was then staying at a partner’s address elsewhere.[46]When pressed on where the proper place for service of proceedings should have been, Mr Gruder accepted that the Defendant was not living at Chatsworth Court. He at first suggested that the correct address for service was Delaford Street. However, on being further taxed with the point that the Claimant had no knowledge of that address, he accepted that it would not have been the proper address for service. He then referred to CPR 6.9(3) and suggested that the Claimant should have taken steps to ascertain the Defendant’s current address by ringing him up. That submission, however, fails because the Claimant had no reason to believe that 25 Gunter Grove was an address at which the Defendant no longer resided or carried on business. Mr Gruder’s final submission therefore became that there was no proper address for service under CPR 6.9 and that the Claimant should have applied for an order for substituted service.[47]I reject the submission that the Claimant should have applied for an order for substituted service, for two reasons. First, as I have said, there was no reason for the Claimant to believe that 25 Gunter Grove was an address at which the Defendant no longer resided. Second, even if the Claimant’s solicitors had made enquiries as envisaged by CPR 6.9(3) (or for any other reason) I am far from satisfied that they would have been given an address other than 25 Gunter Grove for service. It is at this stage that the vague and unsatisfactory nature of the Defendant’s evidence about where he actually lived weighs in the balance to his disadvantage. Even after cross-examination it was unclear what was the nature or extent of the Defendant’s staying at either Delaford Street or the address he gave in his witness statement save that the addresses were not his and he had no interest in them, and that Delaford Street proved to be temporary. It is not even clear when the Defendant moved from Delaford Street to his March 2017 address. In response to the suggestion that the Claimant should simply have telephoned the Defendant (who, on my findings set out above, was consciously avoiding the documents that had been served on him both physically and electronically), I do not accept that a telephone enquiry would have received either a cooperative response or any response at all.[48]I therefore conclude that the Claimant was correct to serve the proceedings on the Defendant at 25 Gunter Grove and that the proceedings were duly served on him. Should the Adjudication Decision and/or the Judgment of Jefford J and/or the Charging Order be Set Aside?[49]In the light of my findings as set out above, it cannot be suggested that there has been any breach of natural justice or procedural unfairness towards the Defendant. Even if I had found that his failure to pick up the relevant emails or documents was the result of an unconscious failing I would have rejected a submission that his lack of knowledge of the adjudication and the Claimant’s action justified setting aside either the adjudicator’s decision or the summary judgment entered by Jefford J or the charging[50]For these reasons I find in favour of the Claimant on the applications. The parties are invited to submit a draft order to be made on handing down this judgment.

order

he would have only himself to blame for such a protracted, pervasive, serious and inexplicable failure to behave with the prudence of a normally intelligent and educated businessman. The central tenet of the Defendant’s submission – that he has had no chance to address the issues in dispute – is rejected on the facts. Equally, although the suggestion was barely pursued in closing submissions, I reject any suggestion that the Claimant has behaved in any way that could be described as underhand or meriting criticism. I reject the submission that the Claimant was under some form of duty to contact the Defendant to find out if he was aware of the proceedings. No such duty exists in circumstances such as the present, though a Claimant who does not take further steps as suggested may expose himself or herself to a later application to set aside on grounds that may be good, bad or indifferent. Here they are bad.