A & D Maintenance and Construction Limited -v- Pagehurst Construction Services Limited
Neither the sub-contract's termination nor the contractor's complaints about the work affected the enforceability of the decision
23 June, 1999
The sub-contractor claimed the amounts under the three unpaid invoices. An adjudicator decided that the contractor should pay the sub-contractor a specified sum of money. The contractor failed to comply with that decision. The sub-contractor applied to the court to enforce the decision by way of summary judgement. The contractor opposed the enforcement of the decision. The contractor contended that the sub-contractor's work was incomplete and defective and that it was responsible for a fire which seriously damaged part of the works. The contractor made a substantial claim against the sub-contractor in separate court proceedings in relation to the fire damage. The contractor also contended that the sub-contract had been determined after the determination of the main contract. Judge Wilcox held that even if the sub-contract had been terminated, the matters referred to the adjudicator remained disputes under the contract and the adjudication provisions of the Housing Grants, Construction and Regeneration Act 1996 remained operative. Had it been Parliament's intention to limit the time in which a party could give notice of his intention to refer a matter to adjudication, section 108 could have imposed a clear time limit. As it was section 108(2) provided that the contract was to enable the party to give notice at any time of his intention to refer a dispute to adjudication. In addition precise limits as to the appointment of adjudicators and the timetabling of the adjudication process were clearly set out in the Scheme for Construction Contracts. There was clear authority for the proposition that the terms governing a reference to arbitration survived the determination of the contract, for example the House of Lords? decision in Heyman v Darwins (1942), and without doubt the position in relation to arbitration was in the minds of the legislators when section 108 was enacted. The judge also held that the contractor's complaints about the sub-contractor's work did not affect the enforceability of the decision. The matters of abatement and claims for damages for breach of contract complained of by the contractor could have been and were canvassed before the adjudicator and would be dealt with in the separate court proceedings brought by the contractor against the sub-contractor. Advice Note Once a construction contract has been entered into, the adjudicator is empowered to deal with any dispute under it notwithstanding its status by the time the adjudication takes place.