Bennett v FMK Construction Ltd.

Under a contractual adjudication timetable, an application to nominate an adjudicator may validly be made on the seventh day. The provision is directory, not a shorter mandatory deadline.

Where an adjudication is rendered abortive by the adjudicator’s resignation or other unavailability, and the same dispute is re-referred under the contractual replacement procedure, the proceedings remain within the saving provision protecting disputes commenced within 28 days of a final certificate. For that purpose, adjudication proceedings commence when the notice of intention to refer is served, not when the referral notice is delivered to the adjudicator.

The claimant engaged the defendant under the JCT Standard Form of Building Contract 1998 Edition Private without Quantities. A final certificate was issued on 11 March 2005. The defendant served a notice of intention to refer disputes to adjudication on 6 April 2005, applied for nomination on the seventh day, and the nominated adjudicator later resigned. The defendant re-served the notice and the same adjudicator was re-appointed.

The claimant sought a declaration that the final certificate was conclusive evidence under clause 30.9. The defendant sought declarations concerning the validity of the adjudicator’s appointment and the operation of the clause 30.9.3 saving provision.

1. The application was under Part 8 of the Civil Procedure Rules. The claimant’s declaration was refused. The defendant’s declaration that the adjudicator had been validly appointed was granted. The final certificate was declared conclusive under clause 30.9.1, subject to its validity, except in respect of matters to which the first adjudication proceedings related.

2. Clause 41A.2.2 did not impose a particular deadline shorter than seven days for applying to the nominator. Its requirement that the application be made with the object of securing appointment within seven days was directory. It was unnecessary to determine the applicant’s state of mind, and clause 41A.5.6 supported that construction by providing that non-compliance did not invalidate the adjudicator’s decision.

3. If adjudication proceedings are simply abandoned by the referring party, the clause 30.9.3 saving provision ceases to apply. That was not what occurred here. The adjudicator’s resignation made him unavailable under clause 41A.3, and the contractual replacement procedure was adopted. The same dispute was re-referred, without any action or omission by the referring party rendering the first proceedings abortive.

4. In those circumstances, “those proceedings” in clause 30.9.3 included the new adjudication proceedings. Re-appointment of the same adjudicator did not produce a different result from the appointment of a new adjudicator following illness or other unavailability. A fresh notice of intention was unnecessary and could be treated as surplusage.

5. For clause 30.9.3, adjudication proceedings commenced upon service of the notice of intention to refer. Treating the referral notice as the commencement would expose a party to losing the contractual protection through delay in appointing an adjudicator, despite timely action. The same approach was consistent with the commencement of arbitration before appointment of the arbitrator.