University of Brighton v Dovehouse Interiors Ltd

For the purpose of a contractual conclusive-evidence clause, adjudication proceedings under the Scheme commence when a valid notice of adjudication is given under paragraph 1, rather than when the dispute is referred to an adjudicator under paragraph 7.

A notice is not invalid merely because it omits an additional contractual address where the responding party is clearly identified and the notice achieves its substantive purpose. Nor does an incorrect nomination of the adjudicator, or a subsequent invalid referral and resignation, retrospectively invalidate the notice. Once engaged, the saving proviso remains effective during subsequent adjudication proceedings, provided the proceedings have not been abandoned.

The University engaged Dovehouse under a construction contract containing a final-certificate conclusive-evidence clause. The clause preserved challenges to the certificate where adjudication proceedings were commenced within the specified period.

Dovehouse served a notice of adjudication before that period expired. The notice used an address different from the contractual address and identified the wrong nominating body. The nominated adjudicator resigned for want of jurisdiction. Dovehouse then served a corrected notice.

The University sought a declaration that the final certificate had become conclusive. The central issue was whether the first notice had commenced adjudication proceedings for the purposes of the saving proviso.

1. Construction of the clause. The contractual question was determined by asking what a reasonable person with the relevant background knowledge would understand the parties to have meant. Where necessary, a construction consistent with business common sense was preferred. The commercial purpose of the clause was to give the parties certainty as to the matters on which a final certificate would be conclusive.
2. Commencement. The Scheme contains no express definition of commencement. Read with clause 1.9.2, its structure and the function of the notice, the natural construction was that proceedings commenced on service of a notice of adjudication under paragraph 1. The notice identifies the dispute, the parties and the redress sought, and defines the adjudicator’s jurisdiction. A referral notice under paragraph 7 is a later procedural step.
3. Omitted address. Paragraph 1(3)(d) required a specified notice address to be included where appropriate. However, not every breach of the Scheme invalidates a notice. The omission of the Mithras House address was technical and non-fundamental. The University was clearly identified, received the notice and knew the dispute being raised.
4. Method and place of service. The Scheme was a self-contained procedural code. Even if the contractual service provisions applied, they did not prohibit effective service at another address. In any event, the notice was substantively and effectively received at the address used.
5. Wrong nominating body and resignation. Dovehouse was not required to identify the nominating body in the notice. The mistake therefore did not invalidate the notice. The defective referral and the adjudicator’s resignation did not negate commencement or remove the benefit of the saving proviso. The proviso required commencement only, not a valid referral, hearing or decision. The proceedings had not been abandoned.
6. Disposition. The claim for a declaration was dismissed. The parties were invited to agree the order and costs, including the costs of the injunction application.