Bovis Lend Lease Ltd v Cofely Engineering Services

As a matter of construction of the sub-contract, the parties agreed that the RICS would be the adjudicator nominating body
 
 
BOVIS LEND LEASE LTD V COFELY ENGINEERING SERVICES
 
Technology and Construction Court
Coulson J
7 May 2009
 

The sub-contract incorporated DOM/2 which was amended by a schedule of amendments. There were six adjudications between the parties. The same adjudicator was nominated by the RICS in the first four adjudications referred by the sub-contractor. Coulson J held that as a matter of construction of the sub-contract, the parties agreed that the RICS would be the adjudicator nominating body. The contractor was therefore not entitled to the declaration it sought by way of CPR Part 8 that the individual named in section B of part 1 of the appendix to act as the adjudicator was the agreed adjudicator.

 

The court should endeavour to construe the document as a whole and to give effect to each part of the contract wherever possible. Part 8 of the appendix in providing that the adjudicator nominator was to be the RICS was the part which expressly dealt with the nomination of the adjudicator under the sub-contract, contained an express reference back to article 3 and had been the subject of an unequivocal series of manuscript amendments which deleted all possible nominating bodies except the RICS. The appendix to the sub-contract was the most important sub-contract document because clause 2.2 of DOM/2 said that it was and it was the one document included in the sub-contract which the parties filled out themselves. The wording of amended clauses 38A.2 and 38A.3 of DOM/2 on which the contractor relied on the ground that they provided that the adjudicator was to be the individual named as the adjudicator in appendix 1 did not affect the conclusion that the parties agreed that the nominating body would be the RICS on the basis that whilst these clauses could be seen as an attempt to move from a nominating body arrangement to an arrangement with a named adjudicator, any such attempt failed as a matter of construction of the sub-contract. Looked at as a matter of commercial common sense, there was a clarity about the sub-contractor's construction of the sub-contract which was missing from the contractor's convoluted case. The absence of any reference to the individual named in section B of part 1 of the appendix in part 8 of the appendix and instead the setting out of a completely different scheme involving the RICS as the nominating body was fatal to the contractor's construction of the sub-contract.

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