Fence Gate Ltd -v- James R Knowles Ltd

The adjudicator did not have jurisdiction under section 104(2) of the Housing Grants, Construction and Regeneration Act 1996 to decide the validity of the consultant's invoices for work to do with the client's arbitration proceedings against the contractor
The client was dissatisfied with various aspects of work carried out by a contractor on a floor. The consultant was engaged to provide architectural and surveying services in relation to the floor in the form of the preparation of a preliminary report. The contract of engagement provided that after the preparation of the report, the consultant's standard expert witness rates were to apply to any work in connection with any litigation. The adjudication did not concern any invoices for the preparation of the report but instead related to the subsequent work carried out by the consultant in connection with the arbitration between the client and the contractor. The nature of the work carried out by the consultant in relation to the arbitration was (1) providing evidence as a factual witness and (2) assisting in the arbitration by providing architectural or engineering advice. The adjudicator made an award whereby the consultant was entitled to payment for various of its invoices. The client applied for a declaration that the adjudicator had no jurisdiction to make any such award Judge Gilliland held that the adjudicator did not have jurisdiction to decide this matter on the basis that the giving of factual evidence by an architect, designer or surveyor at an arbitration did not constitute a ?construction operation? within the meaning of the Construction Act 1996 since it was not the "doing" of architectural, designing or survey in work itself. Whilst factual evidence in relation to a construction operation, for example how the floor had been designed and/or constructed, could loosely be described as evidence "in relation to construction operations", the act of giving evidence describing what the witness had seen or done was not the same thing as the doing or performance of the survey work. Also assisting at an arbitration was not the same thing as providing advice on building or engineering insofar as such assistance would prima facie comprise giving advice as to how the arbitration should be conducted. Advice Note Whilst services provided by consultants in relation to construction contracts may well fall within the ambit of the Construction Act, the provision of evidence in legal proceedings about a the carrying out of a construction contract will in all probability not fall within the Act's ambit.