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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Palmac Contracting Ltd. v Park Lane Estates Ltd. [2005] EWHC 919 (TCC) (22 March 2005) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2005/919.html Cite as: [2005] BLR 301, [2005] EWHC 919 (TCC) |
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QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
33 BULL STREET BIRMINGHAM B4 6DS |
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Date of draft judgment:17 March 2005 Date Of Judgment: 22 March 2005 |
B e f o r e :
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Claimant |
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and |
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Defendant |
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Mr Robert Evans of Counsel (instructed by Gateley Wareing) for the Defendant
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VERSION
OF JUDGMENT: 22 MARCH 2005
BEFORE HER HONOUR JUDGE FRANCES KIRKHAM
HTML VERSION
OF JUDGMENT
Crown Copyright ©
a. There was no dispute at the time of the reference to adjudication and as such the adjudicator had no jurisdiction to make avalid
decision.
b. Thecontractual
provisions relating to the appointment of the adjudicator were not followed, and this deprives the adjudicator of jurisdiction.
c. The adjudicator departed from an agreed position between the parties and/or failed to afford the parties the opportunity to comment upon this departure. This was a breach of the rules of natural justice.
Background
"The position can I think be summarised in the following 2 propositions. (1) If a defendant to a Part 24 (2) application has submitted to the adjudicator's jurisdiction in the full sense of having agreed not only that the adjudicator should rule on the issue of jurisdiction but also that he would then be bound by that ruling, then he is liable to enforcement in the short term, even if the adjudicator was plainly wrong on the issue. (2) Even if the defendant has not submitted to the adjudicator's jurisdiction in that sense, then he is still liable to a Part 24 (2) summary judgment upon the award if the adjudicator's ruling on the jurisdictional issue was plainly right."
Ground 1: There was no dispute at the time of the reference to adjudication and as such the adjudicator had no jurisdiction to make a valid
decision.
"Where theContract
does not specifically state the manner of giving or service of any notice or other document required or authorised in pursuance of this
Contract
such notice or other document shall be given by any effective means to any agreed address. If no address has been agreed then if given or served by being addressed to, pre-paid and delivered by post to the addressee's last known principal business address or, where the addressee is a body corporate, to the body's registered or principal office, it shall be treated as having been effectively given or served."
Although thecontract
includes an annex containing Supplementary Provisions for electronic data exchange, the parties had not incorporated those provisions into their
contract.
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Ground 2: The contractual
provisions relating to the appointment of the adjudicator were not followed, and this deprives the adjudicator of jurisdiction.
"The Adjudicator to decide the dispute or difference shall be either an individual agreed by the parties or, on the application of either party, an individual to be nominated as the Adjudicator by the person named in Appendix 1 ("the nominator"). Provided that:
39A 2.1………..
39A 2.2 where either Party has given notice of his intention to refer a dispute or difference to adjudication, then ... any application to the nominator must be made with the object of securing the appointment of, and the referral of the dispute or difference to, the Adjudicator within 7 days of the date of the notice of intention to refer ..."
"(2) Thecontract
shall:
(a) enable a party to give notice at any time of his intention to refer a dispute to adjudication
(b) provide a timetable with the object of securing the appointment of the Adjudicator and referral of the dispute to him within 7 days of such notice."
Ground 3: The adjudicator departed from an agreed position between the parties and/or failed to afford the parties the opportunity to comment upon this departure. This was a breach of the rules of natural justice.
Conclusion