Vision Homes Ltd v Lancsville Construction Ltd
 EWHC 2042 (TCC)
Queen’s Bench Division, Technology and Construction Court
Christopher Clarke J
4 August 2009
Building contract – Adjudication – Notice of adjudication – Parties entering into building contract – Parties subsequently revising agreement – Dispute arising as to terms of contract – Both parties referring dispute to separate adjudications under Scheme for Construction Contracts – Procedure regarding notice and appointment of adjudicator not followed – First adjudication completed – Whether appointment of defendant’s adjudicators invalid under scheme – Whether concurrent adjudications on same dispute allowed – Whether term to be implied into contract.
Building contract – Adjudication. Queen’s Bench Division, Technology and Construction Court: In adjudication proceedings an appointment of an adjudicator would be invalid if a revised notice of adjudication was set out after the request to the adjudicator to act. Concurrent adjudications on the same dispute were not prohibited under the Scheme for Construction Contracts.
The judgment is available at:  EWHC 2042 (TCC)
The claimant and the defendant entered into a standard form JCT Design and Build Contract 2005 Edition (with amendments). Clause 9.2 provided for disputes to be referred to adjudication under the Scheme for Construction Contracts (the scheme). The parties subsequently informally revised their method of working and proceeded on that basis. In due course disputes arose between the parties regarding the terms to be applied to their revised agreement. The defendant sent a first notice to the claimant of an intention to refer a dispute to arbitration (the defendant’s adjudication). Following the sending of that notice the defendant requested the Royal Institute of Chartered Surveyors to appoint an adjudicator as provided for by the scheme. Later on the same day the defendant sent a slightly modified second notice. The only change consisted of a claim for a declaration that the claimant should pay the adjudicator’s costs and fees. The claimant served on the defendant a notice of an intention to refer a dispute to adjudication (the claimant’s adjudication). Both adjudications proceeded. The defendant’s adjudication completed first. The claimant contended that the decision of the defendant’s adjudication was not binding on him. The adjudicator in the claimant’s adjudication advised the parties to ask the High Court for guidance on the jurisdiction of the defendant’s adjudication.
The claimant submitted, inter alia: (i) that the appointment of the defendant’s adjudicator was invalid under the scheme as the request to act preceded the notice of adjudication rather than followed it; (ii) that there could not be two adjudications on the same dispute at once; and (iii) that the court should imply a term suspending the running of time in an adjudication pending the resolution of a pre-existing adjudication of the same dispute.
The court ruled:
(1) The scheme contemplated that the request to the nominating body to appoint an adjudicator was to follow the giving of a notice of adjudication (see  of the judgment).
The scheme referred to a request in writing which accompanied (rather than preceded) the relevant notice of adjudication. If the provisions which established the jurisdiction of the adjudicator were not complied with, it was irrelevant whether or not the other party had suffered prejudice by that non-compliance. Where a notice had been served, a nomination sought, then a second notice followed and the adjudication proceeded pursuant to the second notice, the question of jurisdiction could not be decided by a determination of the degree of importance of an additional claim.
In the instant case, the adjudicator had no jurisdiction to act under the second notice because that notice was not followed but preceded by a request to the nominating body under 2(1)(b) of the scheme. It was not possible to regard the request as continuing so that it might be regarded as made both before and after the second notice. The alteration to the notice to add a claim for the adjudicator’s fees added something which although not insignificant was of limited importance compared with the dispute as a whole. In other circumstances, however, the difference between one notice and a second might be much more significant (see  and  of the judgment).
The appointment of the adjudicator was invalid.
IDE Contracting Ltd v RG Carter Cambridge Ltd  All ER (D) 224 (Jan) considered.
(2) There could be concurrent adjudications on the same dispute.
The scheme provided that a dispute which had already been referred to adjudication and decided could not be referred again. The scheme made provision for resignation where a decision had previously been reached, but did not provide for resignation where the dispute had been referred but had not yet been decided (see  and  of the judgment).
(3) It was not necessary for business efficacy that a term such as the one proposed should be implied. The scheme provided for an extension of time in certain circumstances; but those circumstances did not include where there was a challenge to the decision of another adjudicator. The contract was not unworkable if such a term was not implied even though the absence of such a term might lead to a race to achieving a final decision. If such a term were implied it would be necessary to determine precisely how long the suspension should last and whether it should continue pending any appeal (see  of the judgment).
Peter Fraser QC and Simon Crawshaw (instructed by Maxwell Winward LLP) for the claimant.
Martin Bowdery QC and Stuart V Kennedy (instructed by Merriman White Solicitors) for the defendant.
Tara Psaila Barrister.