Rhode v Markham David (Part II)

The adjudication proceedings brought by the builder were invalid on the basis that the notice of adjudication was never effectively served on the employer and the adjudicator's procedure was so unfair as to fatally compromise the validity of the proceedings
 
RHODE v MARKHAM-DAVID (Part II)

Technology and Construction Court
His Honour Judge Anthony Thornton QC
26 March 2007
 
 
The builder commenced adjudication proceedings against the employer. The adjudicator sent to the employer at his last known principal residence a special delivery letter enclosing a copy of the notice of adjudication. The employer was no longer living at the address to which the adjudicator's letter was sent so that the postman failed to make contact with anyone at the address and no one tried to collect the letter from the post office with the result that it was returned to the adjudicator as being undelivered. When the adjudicator learnt that neither the adjudication notice had not been delivered to the address he had been given, he asked the builder's claims consultant to send a further copy of the adjudication notice to the employer, which it did by first class post enclosed with a letter. There was no evidence as to whether the letter from the claims consultant was ever delivered to the address but on the assumption that it was delivered by it being pushed through the letter box or by it being handed to one of the new residents at that address, it never came to the employer's attention. No further attempts were made by the adjudicator to contact the employer so as to inform him of the progress of the adjudication. Section 115(4) of the Construction Act provided that a notice or other document was to be treated as having been effectively served if it was addressed, pre-paid and delivered by post to the addressee's last known principal residence.
 
Judge Coulson refused to enforce the adjudicator's decision in the builder's favour on two grounds. The first was that the notice of adjudication was never effectively served on the employer within the meaning of section 115(4). The second was that the procedure adopted by the adjudicator in this connection was so unfair as to fatally compromise the validity of the proceedings (if they had been validly started). The adjudicator had failed to take reasonable steps to try and ensure that it came to the employer's attention that the adjudication was taking place and what the progress of the adjudication was so as to allow him the opportunity of participating in the adjudication (had he wished to do so).
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