VISION HOMES LTD V LANCSVILLE CONSTRUCTION LTD

The adjudicator's decision was invalid on the ground that it was made in an adjudication where the request for the adjudicator's appointment preceded the contractor's notice of the adjudication
 
 

Technology and Construction Court
Christopher Clarke J
4 August 2009

 
The adjudicator’s decision was invalid on the ground that it was made in an adjudication where the request for the adjudicator’s appointment preceded the contractor’s notice of adjudication
 
Paragraph 1 of the Scheme for Construction Contracts provided that the referring party in an adjudication was to give its written notice of adjudication of his intention to refer the dispute. Paragraph 2(1) provided that following the giving of a notice of adjudication and subject to any agreement between the parties to the dispute as to who was to act as adjudicator (a) the referring party was to request the person (if any) specified in the contract to act as adjudicator or (b) if no person is named in the contract or the person named had already indicated that he was unwilling or unable to act and the contract provided for a specified nominating body to select a person, the referring party was to request the nominating body named in the contract to select a person to act as adjudicator. The contractor served two notices of adjudication on the same day. The second notice was the same as the first except that the relief sought by it in its notice included a claim for the employer to pay the adjudicator’s fees and expenses. After the contractor served its first notice of adjudication, it made its request for an adjudicator to be appointed. The employer contended that the adjudicator’s decision was invalid on the ground that it was made in an adjudication where the request for the adjudicator’s appointment preceded the contractor’s notice of adjudication.
 
Christopher Clarke J accepted the employer’s contention. The adjudicator’s decision had been made without jurisdiction. The Scheme for Construction Contracts contemplated that the request to the nominating body for the adjudicator’s appointment was to follow the giving of a notice of adjudication. The contractor’s second notice of adjudication was not followed but was instead preceded by its request to the nominating body under paragraph 2(1)(b) of the Scheme for Construction Contracts. It was not possible to regard the request for the appointment of an adjudicator as continuing so that it might be regarded as made both before and after the second notice of adjudication because paragraphs 2(1) and 3 of the Scheme for Construction Contracts referred to a request in writing which accompanied (rather than preceded) the relevant notice of adjudication
 
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