Connex South Eastern Ltd v MJ Building Services Group Plc (Part II)

It was not an abuse of the process for the contractor to have started adjudication proceedings over a year after the contractor had purported to accept the employer's repudiation of the contract
 
CONNEX SOUTH EASTERN Ltd v MJ BUILDING SERVICES GROUP PLC (Part II)

Court of Appeal
Ward, Dyson and Carnwath LJJ
1 March 2005
 
 
Dyson LJ held that it was not, as the employer contended, an abuse of the process for the contractor to have started adjudication proceedings over a year after the contractor had purported to accept the employer’s repudiation of the contract. This was on the basis that the proper interpretation of the words “at any time” in section 108(2)(a) of the Construction Act 1996, which provided that a party to a construction contract was entitled to give notice of his intention to refer a dispute to adjudication “at any time”, should be given their literal and ordinary meaning.
 
It was not an abuse of process to permit an adjudication where it was no longer possible to have a quick and cheap adjudication due to the passage of time insofar as (i) “At any time” meant exactly what it said and (ii) Whilst it would have been possible to restrict the time within which an adjudication could be commenced, say by reference to a period by reference to the date when work was completed or the contract terminated, no such restriction was imposed by Parliament and it was clear from Hansard that the question of the time for referring a dispute was carefully considered and that it was decided not to provide any time limit for entirely rational reasons.
 
Whilst there might be circumstances in which a party lost the right to refer a dispute to adjudication, for example by waiver or estoppel, there was nothing to prevent a party from referring a dispute even after the expiry of the relevant limitation period albeit that in such circumstances the claimant ran the risk that the claim might fail before the adjudicator where a limitation defence was successful.
 
The concept of “abuse of process” in civil courts was well understood but neither the Act nor the Scheme for Construction Contracts contained any reference to such abuse or gave an adjudicator the power to strike out or stay an adjudication for such abuse.
 
Advice Note
The Court of Appeal has now confirmed that there is no time limit on when an adjudication may be started. This is subject only to the dispute already having been resolved (permanently) by court or arbitration proceedings or the limitation period for the claim not having expired.
 
 
 
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