Bovis Lend Lease Ltd v Cofely Engineering Services

Construction contracts should be read as a whole, giving effect to each provision where possible and adopting a sensible commercial interpretation. Inconsistencies between specially written or amended terms and printed standard conditions generally favour the former. Contractual priority clauses must be applied. Where an express adjudicator-nomination mechanism is unclear and unenforceable, the statutory adjudication scheme may supply the mechanism. A party’s participation in earlier adjudications does not ordinarily create a prospective estoppel or confer jurisdiction for later disputes. Jurisdiction must be considered in relation to the particular dispute and contractual mechanism in issue.

The claimant, the main contractor for the Manchester Civil Justice Centre, engaged the defendant under a subcontract for mechanical and public health works. Four earlier adjudications had been conducted by an adjudicator nominated by the RICS. When the defendant commenced a fifth adjudication, the claimant commenced a sixth adjudication and sought the appointment of a different adjudicator named in the main contract arrangements.

The claimant sought declarations under CPR Part 8 that its adjudicator had jurisdiction. The defendant relied primarily on the subcontract’s Appendix, which identified the RICS as nominating body, and alternatively on the statutory Scheme, estoppel and the alleged binding effect of the adjudicator’s jurisdictional decision in the second adjudication.

1. Primary construction. The claimant’s Part 8 claim was dismissed. The subcontract, read as a whole, made the RICS the adjudicator-nominating body. The Appendix had contractual priority under clause 2.2 and contained the parties’ specific manuscript amendments deleting the other nominating bodies. The reference to a named adjudicator appeared in the part dealing with the main contract and did not neutralise the subcontract’s express Part 8 provision.
2. The amended clauses 38A.2 and 38A.3 did not create a valid named-adjudicator arrangement. They referred to an Appendix 1 which belonged to the main contract and required an executed tripartite JCT adjudication agreement, which had never existed between the parties and the named adjudicator. The claimant’s construction required the court to disregard or rewrite significant contractual provisions and was too convoluted to be accepted.
3. Alternative Scheme reasoning. If the express provisions were too confused to be enforceable, Part 1 of the Scheme for Construction Contracts would be implied. That Scheme permitted nomination by bodies including the RICS. Mr Bingham would therefore still have had jurisdiction. The position differed from Pegram Shopfitters Limited v Tally Weijl (UK) Limited [2003] EWCA (Civ) 1750, because there was no dispute about the existence of a binding contract, and the competing-nominator issue in Lead Technical Services Limited v CMS Medical Limited [2007] EWCA (Civ) 316 did not arise.
4. Estoppel and prior jurisdictional decision. The court would not have found an estoppel preventing the claimant from relying on its contractual rights in relation to the fifth adjudication. Nor did the second adjudication confer prospective jurisdiction for future disputes. Even if the parties had agreed that the earlier jurisdiction decision was binding for that adjudication, jurisdiction for later disputes had to be considered when those disputes arose. The sixth adjudicator therefore lacked jurisdiction, while Mr Bingham had jurisdiction to continue with the fifth adjudication.