KNN Coburn LLP v GD City Holding Ltd

The notice of referral was effectively served when it was received by the adjudicator and the contractor's solicitors on 31 January (as opposed to 1 February when they received the documents appended to and supporting the notice).



Edwards-Stuart J
Technology and Construction Court
2nd October 2013

Paragraph 7(1) of the Scheme for Construction Contracts provides that the referring party shall refer the dispute in writing (the 'referral notice') to the adjudicator. Paragraph 7(2) provides that the referral notice shall be accompanied by the documents relied on by the referring party.
The contractor was awarded a specified sum in a previous adjudication. The employer served a notice of adjudication claiming liquidated damages. The employer’s solicitors sent to the adjudicator and the contractor’s solicitors a “referral” notice on 31 January and hard copies of the notice and the documents referred to in the notice on 1 February.
The adjudicator awarded the employer a specified sum. The contractor opposed enforcement of the decision on the ground that the adjudicator took more than 28 days to issue his decision. The employer contended that referral was served on 1 February when it served the supporting documents on the basis that (i) They were critical to the adjudicator’s ability to commence an informed consideration of the dispute (ii) The previous adjudicator’s decision established the duration of the extension of time granted to the contractor and the date of practical completion and (iii) Both documents were essential to any consideration of whether its entitlement to liquidated damages.
Edwards-Stuart J rejected the employer’s contention. The referral document was in a form appropriate for a referral notice within the meaning of paragraph 7(1) (ii) The adjudicator's initial reaction to receiving the document was to acknowledge receipt "of the referral notice", although he deferred giving directions until he had the supporting documents and (iii) The adjudicator's subsequent characterisation of the document as merely a "frontispiece" was inapt. Whilst the previous adjudicator’s decision was a supporting document that evidenced the revised completion date and the contractor’s responsibility for the subsequent delay, the referral identified the material facts on which the employer’s claim was based, including the revised completion date, the parties’ agreement as to the date when practical completion had been achieved and the contractor’s responsibility for the subsequent delay. It would therefore be wrong to suggest that (i) The nature of the dispute could not be identified without reference to the supporting documents or (ii) The referral document did not "refer the dispute in writing" as required by paragraph 7(1).