Hart Investments v Fidler

The service of the contractor's referral notice eight days after its notice of adjudication, rather than within the seven day period required by the Act and the Scheme for Construction Contracts, was irregular and invalid with the result that the adjudicator had no jurisdiction

Technology and Construction Court
His Honour Judge Peter Coulson QC
3 November 2006
Section 108(2)(b) of the Construction Act provides that a construction must provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within seven days of the notice of adjudication. Paragraph 7(1) of the Scheme for Construction Contracts provides that the referring party is to refer the dispute in writing (the "referral notice") to the adjudicator not later than seven days from the date of the notice of adjudication. In the instant case the referring party, the contractor, served its referral notice eight days after the service of its notice of adjudication. The issue for determination was whether, in consequence of this one day delay, the adjudicator had no jurisdiction to enter on the reference and whether that the award of a specified sum to the contractor was therefore a nullity.
Judge Coulson held that this one day delay did have these consequences (with the result that the decision should not be enforced) where the employer was entitled to and did refuse to waive this irregularity of service. The judge noted that whilst there were no reported cases on this matter, there was a line of authorities dealing with an adjudicator's failure to provide a decision within 28 days in accordance with section 108(2)(c) and paragraph 19(1) of the Scheme for Construction Contracts. In particular the Inner House of the Court of Session in Scotland in Ritchie Brothers v David Phillip Commercials (2005) had held that an adjudicator had to produce his decision within 28 days with the result that a decision reached outside the 28 day period was a nullity unless there was an agreed extension of that period. The same principle should also apply to the event which signalled the commencement of the same 28 day period, namely the provision of the referral notice within seven days of the intention to refer. Whilst it might be said that in the overall scheme of things the delay of one day should not be accorded great significance, difficult questions issues could arise if the failure to comply with the time period was ignored. For example the delay might be one month rather than (just) one day.