Lanes Group Plc V Galliford Try Infrastructure Ltd
Court of Appeal
Richards, Stanley Burnton and Jackson LJJ
21 December 2011
The contractor in the instant case “forum” shopped by choosing not to serve its referral documents on the adjudicator first nominated by the adjudicator nominating body. The Court of Appeal held that the second adjudicator nominated by that body had jurisdiction. The formidable difficulties in the case advanced by the sub-contractor meant that the contractor’s conduct was permissible under the contract. These difficulties were that (i) It sometimes happened that an adjudication was not pursued after the preliminary steps had been taken (ii) There was no authority to suggest that the referring party in consequence lost its right to adjudicate that dispute for all time (iii) The Blue Form sub-contract, the ICE Adjudication Procedure and the Scheme for Construction Contracts all recognised a right to restart an adjudication in a variety of circumstances (iv) It was possible to think of many situations, not all of which were provided for by express terms, in which the adjudication procedure would be thwarted if there were no right to re-start an abortive adjudication, for example a postal delay which prevented the referral documents being served within two days as required by paragraph 4.1 of the ICE Adjudication Procedure and (v) It could not be right that the referring party’s entitlement to adjudicate the dispute in question was irretrievably lost in such an example.
The sub-contractor’s submitted that (i) Section 108 of the Construction Act and clause 18B of the sub-contract conditions permitted a party to refer a dispute to adjudication on one occasion only (ii) If the referring party deliberately and without good reason failed to serve referral documents by the due date and therefore did not follow through the reference, the right to adjudication of the dispute notified in the adjudication notice was lost forever and (iii) The contractor had allowed the adjudication before the adjudicator first nominated by the ICE to lapse and could not commence a fresh adjudication in respect of the same subject matter. These submissions should be rejected because: (i) It was impossible to imply a term of this nature into the sub-contract, the Construction Act or the Scheme for Construction Contracts and (ii) If such an elaborate provision were to be implied, an expensive factual investigation would be required in some cases to determine whether the claimant had or had not lost the right to adjudicate.