Lanes Group Plc V Galliford Try Infrastructure Ltd (No 1)

The adjudicator had jurisdiction despite the contractor's failure to send to the adjudicator and to the sub-contractor all the documetns supporting its notice of referral within two days of the adjudicator's appointment in breach of the ICE Adjudication Procedure
 

 

LANES GROUP PLC V GALLIFORD TRY INFRASTRUCTURE LTD (No 1)
Technology and Construction Court
Akenhead J
7 April 2011
 
 

A dispute arose between the contractor and the sub-contractor which the contractor referred to adjudication. The adjudication rules incorporated by the sub-contractor were the Institution of Civil Engineers' Adjudication Procedure. An adjudicator was appointed. The sub-contractor issued Part 8 proceedings in which it sought an injunction to restrain the contractor from pursuing the adjudication. One of the sub-contractor’s grounds for seeking the injunction was that under that procedure there had been a late sending, service of and receipt both by it and by the adjudicator of the notice of referral and of the documents referred to in that notice (and forming part of the referral). This meant that the adjudicator did not have jurisdiction. Paragraph 4.1 of the procedure required the notice of referral and its supporting documents to be sent within two days of the adjudicator's appointment. In the event some of the supporting documents were sent by email by the contractor to the adjudicator and to the sub-contractor early in the morning of the third day.

 

Akenhead J held that this contravention of paragraph 4.1 did not mean that the adjudicator did not have jurisdiction. It was accepted by the sub-contractor that the service of the notice of referral and its supporting documents was essentially a matter of fact and degree. The notice of referral itself was delivered to the adjudicator and to the sub-contractor within two days of his appointment. This was not a case in which it could be said that service of the notice of referral and the supporting documents referred to in that notice was late. If that service was late, it could not be said that it was so late as to impeach the process of adjudication. All of the documents supporting and referred to in that notice were delivered to the adjudicator and to the sub-contractor by being emailed either within the two day period or within a very short period (a couple of hours) thereafter. On a proper construction of paragraphs 4.1 and 4.2, the adjudicator and the sub-contractor were broadly served within time.
 

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