Anglian Water Services v Laing O'rourke Utilities Ltd
Technology and Construction Court
25 June 2010
It was common ground that the adjudication provisions of the second edition of the NEC form of engineering contract as amended did not comply with the requirement in section 108(2) of the Construction Act for the contract to provide for the referral of a dispute to adjudication at any time. This meant that the Scheme for Construction Contracts was to replace those contractual adjudication provisions. Paragraph 19 of the Scheme for Construction Contracts set out the time limits within which an adjudicator had to reach his decision and provided that if the adjudicator for any reason failed to reach his decision in accordance with those time limits, any of the parties to the dispute could serve a fresh notice of adjudication and continue with a new adjudicator.
Edwards-Stuart J held that clause 93.1 of the NEC contract was not incompatible with the Scheme for Construction Contracts, did not constitute one of the contractual adjudication provisions and should not be replaced by the adjudication provisions of the Scheme. The judge stated that paragraph 19 and clause 93.1 could be operated together and were not mutually exclusive. If the adjudicator failed to give a decision within the required time, paragraph 19 and clause 93.1 when read together produced a situation in which (i) A party could refer the dispute to arbitration under clause 93.1 provided that he notified his intention to do so within four weeks of the date by which the adjudicator should have notified his decision and (ii) If the party failed or chose to refer the dispute to arbitration, he could start a fresh adjudication with a new adjudicator under paragraph 19. Whilst clause 93.1 was relevant to the contractual adjudication provisions in that non-compliance with its requirements would leave the adjudicator's decision as finally binding, it was both in form and substance concerned with the provision of a right to refer a dispute to arbitration. If clause 93.1 were to be removed, it would be open to question whether or not there was a surviving right to refer a dispute to arbitration at all.