Palmac Contracting v Park Lane Estates

Clause 39A2.2 of JCT 98 With Contractor's Design required the service of the notice of intention to refer a dispute to adjudication on the defendant in the adjudication before the referring party could apply to the contractual adjudicator nominating body
 
PALMAC CONTRACTING LTD v PARK LANE ESTATES LTD

Technology and Construction Court
Her Honour Judge Frances Kirkham
22 March 2005
 
The contract incorporated JCT 98 With Contractor's Design. Clause 39A2.2 provided that where either party had given notice of his intention to refer a dispute to adjudication, then any application to the adjudicator nominating body had to be made with the object of securing the appointment of and the referral of the dispute to the adjudicator within seven days of the date of the notice of intention to refer. The employer opposed the summary judgment application made by the contractor to enforce the adjudicator's decision in its favour on the ground that clause 39A2.2 required the service of the notice of intention to refer a dispute to adjudication on the defendant in the adjudication before the referring party could apply to the contractual adjudicator nominating body.
 
Judge Kirkham rejected this contention. The purpose of clause 39A2.2 was to set out a procedure for the appointment of an adjudicator and it did not stipulate that an application for the nomination of an adjudicator had to be made after the giving of the notice of intention to refer insofar as the word "then" was used as a stylistic device to link the two halves of the clause (as it was used elsewhere in JCT WCD) and was not used in a chronological sense so as to mean that a party first had to serve a notice and then apply to the nominating body. Support for this view was to be derived from clause 108(2) of the Construction Act which provided that the contract was to enable a party to give notice at any time of his intention to refer a dispute to adjudication and provide a timetable with the object of securing the appointment of the adjudicator and the referral of the dispute to him within seven days of such notice. Section 108(2) was not prescriptive as to the timing of any nomination and instead the requirement was for the provisions of the contract to have the objective of securing the appointment within seven days of the service of the notice of intention to refer.
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