Williams v Noor

The omission from the contractor's notice of adjudication of the name of the owner of the contractor's business as the contracting party did not invalidate the entire adjudication proceedings for non-compliance with paragraph 1(3) of the Scheme for Construction Contracts
 
WILLIAMS v NOOR

Technology and Construction Court
His Honour Judge Hickinbottom
29 November 2007
 
The employer contended that the omission from the contractor's notice of adjudication of the name of the owner of the contractor's business as the contracting party under the building contract (where only the contractor's business name was set out in the notice) effectively invalidated the entire adjudication proceedings. This contention was advanced because that paragraph 1(3) of the Scheme for Construction Contracts requires the names and addresses of the parties to be set out in the notice of adjudication. The employer further contended that the contractor was therefore not entitled to enforce against him the adjudicator's decision in the contractor's favour.
 
Judge Hickinbottom rejected these contentions on the basis that this requirement for the inclusion of such prescribed information was directory (and not mandatory in the sense of the notice and any ensuing adjudication being bad in the absence of such information). This rejection was on the basis that the main practical purpose of paragraph 1(3) was to ensure that when a reference was made to an appointing body, that body had sufficient information to be able to appoint the adjudicator and that no prejudice had been caused to the employer by this omission. The judge went on to point out that the Construction Act itself contains no such requirement, which was only to be found in paragraph 1(3). It was also contrary to the nature and purpose of the adjudication scheme in the Construction Act for the Scheme for Construction Contracts to be construed in a legalistic manner. In particular the purpose of the adjudication scheme would be undermined if a party against whom an unfavourable decision was made could take advantage of a failure to identify a contracting party in the notice of adjudication where the names and addresses of the contracting parties were clear and no party was prejudiced by that failure. In addition the robust nature of adjudication under the Construction Act was contrindicative of a construction which made such matters as this as set out in the Scheme for Construction Contracts mandatory rather than merely directory. Finally the reasons given by Judge Havery in Aveat Heating v Jerram Falkus Construction (2007) for holding that the requirements of paragraph 1(3) were directory rather than mandatory also supported this conclusion.
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