Westshield Civil Engineering Ltd v Buckingham Group Contracting Ltd

Summary judgment should not be entered to enforce the decision in the contractors favour and any further steps in the enforcement proceedings should await the outcome of the account under the Company Voluntary Arrangement entered into by the contractor

Technology and Construction Court
Akenhead J
28th June 2013

Clause 14(6) of the sub-contract provided that a party dissatisfied with the decision of the adjudicator could within 28 days of the decision refer the dispute to legal proceedings or arbitration and that if no such proceedings were commenced within the said 28 days, the decision was to become final and binding on the parties. CPR Part 7.2 provides that proceedings are started when the court issues a claim form at the claimant’s request and that a claim form is issued on the date entered on the form by the court.
The sub-contractor contended that the contractor failed to comply with the requirement in clause 14(6) to have commenced the proceedings within 28 days of it being reached. The fact that the contractor issued (but did not serve) its claim form within the 28 day period meant that the proceedings had not been “commenced”.
Akenhead J rejected the sub-contractor’s contention. The CPR distinguishes between the issue of proceedings and their service because Part 7.5 lays down that for claim forms to be served within the jurisdiction there must be service before 12.00 midnight on the calendar day four months after the date of issue of the claim form. Proceedings in England and Wales are started (or synonymously "commenced") when proceedings are issued by the court.
The sub-contractor’s argument that there must be a commercial or purposive interpretation of clause 14(6) which reads the word "commenced" as meaning "served" should be rejected because (i) The word "commenced" is a relatively simple English word (ii) The parties must either have known or be taken to have known that the issue of proceedings within this jurisdiction heralds the commencement of the proceedings (iii) Adjudication both generally and under the sub-contract is a process primarily designed to provide a decision which is temporarily binding but can be reversed in the tribunal selected by the parties for final dispute resolution (iv) It would need absolutely clear and express wording to the effect that the "commencement" of proceedings meant "service" and (v) It is not somehow unfair or non-commercial that the losing party to an adjudication can in some way "conceal" the fact that it has effectively prevented the decision becoming final and binding by issuing appropriate proceedings but not serving them for up to 4 months.