Rhode v Markham-David (No 2)

An adjudication cannot validly begin unless the adjudication notice is effectively served in accordance with the applicable statutory service provision. Sending a special-delivery letter to the recipient’s last known principal residence, which is returned because no one signs for it, does not amount to delivery by post where the letter is not left at the address and is never collected.

Independently, an adjudicator must take reasonable steps to establish the respondent’s current address, ensure that the initiating documents have been validly served and brought to the respondent’s attention, and continue to serve subsequent documents and the decision. Failure to do so may render the process fundamentally unfair and the adjudicator’s decision unenforceable.

Mr Rhode, a builder, sought to enforce an adjudicator’s decision concerning refurbishment work undertaken for Mr Markham-David. The contract was evidenced in writing but contained no adjudication clause, so the adjudication relied on the statutory right to adjudicate under the applicable construction legislation.

Jackson J had previously refused summary judgment and granted permission to defend: [2006] EWHC 814 (TCC). At trial, it was common ground that Mr Markham-David had moved from the address to which the adjudication notice and later documents were sent. He received none of them and did not participate in the adjudication.

The principal issues were whether the adjudication had been validly commenced and concluded, and, alternatively, whether the procedure complied with minimum standards of fairness and natural justice.

1. Non-service and validity. Section 115(4) required a notice addressed, prepaid and delivered by post to the addressee’s last known principal residence to be treated as effectively served. The adjudication notice was sent by special delivery to Mr Markham-David’s former address. The letter was returned to the sender because no recipient signed for it. It had not been left at the address and there was no evidence that anyone collected it from the Post Office. It therefore had not been delivered by post, and the adjudication had never been validly started.
2. Fairness and natural justice. The alternative objection also succeeded. Once the adjudicator knew that the notice of adjudication, notification of appointment and terms of appointment had not reached Mr Markham-David, it was insufficient merely to ask the claiming party to resend them to the same address and then take no further steps. The adjudicator was required to take reasonable steps to establish where the respondent resided, verify valid service of the relevant documents, and ensure that the respondent was brought into a position to participate.
3. The adjudicator could use Mr Rhode or his representative as an agent for delivery, including by registered or personal delivery, but remained responsible for satisfying himself that delivery had been achieved. No attempt was made to verify the address or to ensure service of later directions and the decision. The procedure was consequently so unfair that it would have fatally compromised the adjudication even if it had been validly commenced.
4. Mr Rhode’s claim to enforce the adjudicator’s decision failed and was dismissed with costs.

The judgment itself records that Jackson J heard an earlier application for summary judgment, refused summary judgment and gave permission to defend in [2006] EWHC 814 (TCC). Following the trial, this court refused enforcement and dismissed the claim with costs.