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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> M Rohde Construction v Markham-David [2006] EWHC 814 (TCC) (20 March 2006) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2006/814.html Cite as: [2006] EWHC 814 (TCC), [2006] CILL 2364, [2006] BLR 291 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION
COURT
![]() ![]() |
B e f o r e :
MR
JUSTICE JACKSON
____________________
![]() ![]() ![]() ![]() ![]() | Claimant | |
![]() | ||
NICHOLAS ![]() | Defendant |
____________________
Official Court Reporters
Cliffords Inn, Fetter Lane, London, EC4A 1LD
Telephone: 0207 269 0370
MISS
ELIZABETH REPPER appeared on behalf of
M.
ROHDE
CONSTRUCTION
MR
NICHOLAS
MARKHAM-DAVID,
the defendant, appeared in person.
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
MR
JUSTICE JACKSON:
Part 1 - Introduction
"(1) The provisions of this Part apply only where theconstruction
contract is in writing, and any other agreement between the parties as to any
matter
is effective for the purpose of this Part only if in writing.
The expressions "agreement", "agree" and "agreed" shall be construed accordingly.(2) There is an agreement in writing-
(a) if the agreement ismade
in writing (whether or not it is signed by the parties),
(b) if the agreement ismade
by exchange of communications in writing, or
(c) If the agreement is evidenced in writing.
(3) Where the parties agree otherwise than in writing by reference to terms which are in writing, theymake
an agreement in writing.
(4) An agreement is evidenced in writing if an agreementmade
otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement."
"(1). A party to aconstruction
contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this Section.
For this purpose the word "dispute" includes any difference.
(2) The contract 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;
(c)require the adjudicator to reach a decision within 28 days of referral or such longer period as is agreed by the parties after the dispute has been referred;
(d)allow the adjudicator to extend the period of 28 days by up to 14 days, with the consent of the party by whom the dispute was referred;
(e)impose a duty on the adjudicator to act impartially; and
(f)enable the adjudicator to take the initiative in ascertaining the facts and the law.
(3) The contract shall provide that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.
The partiesmay
agree to accept the decision of the adjudicator as finally determining the dispute ……
(5) If the contract does not comply with the requirements of subsections(1) to(4), the adjudication provisions of the Scheme forConstruction
Contracts apply."
"(1) The parties are free to agree on themanner
of service of any notice or other document required or authorised to be served in pursuance of the
construction
contract or for any of the purposes of this Part.
(2) If or to the extent that there is no such agreement the following provisions apply.(3) A notice or other documentmay
be served on a person by any effective
means.
(4) If a notice or other document is addressed, pre-paid and delivered by post-(a) to the addressee's last known principal residence or, if he is or has been carrying on a trade, profession or business, his last known principal business address, or(b) Where the addressee is a body corporate, to the body's registered or principal office,it shall be treated as effectively served."
"1. The adjudicator shall reach his decision not later than-
(a) twenty eight days after the date of the referral noticementioned
in paragraph 7(1), or
(b) forty two days after the date of the referral notice if the referring party so consents, or(c) such period exceeding twenty eight days after the referral notice as the partiesmay,
after the giving of that notice, agree …
(3) As soon as possible after he has reached a decision, the adjudicator shall deliver a copy of that decision to each of the parties to the contract".
Part 2 - The facts
Part 3 - The present proceedings
Part 4 - Does the defendant have a real prospect of successfully defending the claim?
"85. The objective, which underlies the Act and the Statutory Scheme requires the courts to respect and enforce the adjudicator's decision, unless it is plain that the question which he has decided, was not the question referred to him or themanner
in which he has gone about his task is obviously unfair. It should only be in rare circumstances that the courts will interfere with the decision of an adjudicator. The courts should give no encouragement to the approach adopted by DML in the present case, which (contrary to DML's outline submissions to which we have referred in paragraph 66 of this Judgment)
may
indeed aptly be described as "simply scrabbling around to find some argument, however tenuous, to resist payment".
86. It is only too easy in a complex case, for a party who is dissatisfied with the decision of an adjudicator, to comb through the adjudicator's reasons and identify points upon which to present a challenge under the labels, "excessive jurisdiction" or "breach of natural justice". Itmust
be kept in
mind
that the
majority
of adjudicators are not chosen for their expertise as lawyers. Their skills are as likely (if not
more
likely) to lie in other disciplines. The task of the adjudicator is not to act as arbitrator or judge. The time constraints within which he is expected to operate are proof of that. The task of the adjudicator is to find an interim solution, which
meets
the needs of the case. Parliament
may
be taken to have recognised that in the absence of an interim solution the contractor (or sub-contractor) or his sub-contractors will be driven into insolvency through a wrongful withholding of payments properly due. The Statutory Scheme provided a
means
of
meeting
the legitimate cash and flow requirements of contractors and their subordinates. The need to have the "right" answer has been subordinated to the need to have an answer quickly. The Scheme was not enacted in order to provide definitive answers to complex questions. Indeed, it
may
be open to doubt whether Parliament contemplated that disputes involving difficult questions of law would be referred to adjudication under the Statutory Scheme; or whether such disputes are suitable for adjudication under the Scheme. We have every sympathy for an adjudicator faced with the need to reach a decision in a case like the present.
87. In short, in the overwhelmingmajority
of cases, the proper course for the party who is unsuccessful in an adjudication under the Scheme
must
be to pay the amount that he has been ordered to pay by the adjudicator. If he does not accept the adjudicator's decision as correct (whether on the facts or in law), he can take legal or arbitration proceedings in order to establish the true position. To seek to challenge the adjudicator's decision on the ground that he has exceeded his jurisdiction or breached the rules of natural justice (save in the plainest cases) is likely to lead to a substantial waste of time and expense, as we suspect the costs incurred in the present case will demonstrate only too clearly."
Part 5 - In the exercise of its discretion, should the court set aside the default judgment?
"In considering whether to set aside orvary
a judgment entered under Part 12, the
matters
to which the court
must
have regard include whether the person seeking to set aside the judgment
made
an application to do so promptly."