Complete Building Solutions Ltd v Brown & Anor

On a renewed application for permission to appeal against summary judgment enforcing an adjudicator’s decision, the Court of Appeal held that a jurisdiction challenge was properly arguable and had a real prospect of success. The issue was whether a second adjudicator had to resign because the later dispute was the same or substantially the same as an earlier adjudicated dispute. Identical wording in the statutory adjudication scheme was relevant because that scheme had been incorporated into the contract. A procedural challenge to accelerated enforcement did not displace the fresh question under CPR part 24: whether there was a real prospect of successfully defending the claim. Permission was granted on the jurisdiction ground alone, with time extended and the appeal expedited.

The appellants engaged Complete Building Solutions Ltd to carry out substantial building works under a JCT Minor Works Contract. The contract incorporated the adjudication scheme under the Housing Grants, Construction and Regeneration Act 1996 and contained a provision requiring an adjudicator to resign where the dispute was the same or substantially the same as one previously decided.

After an initial adjudication, the builders served a further notice and obtained a second adjudication decision. The second adjudicator rejected the appellants’ jurisdiction objection. Summary judgment was entered to enforce that decision, and His Honour Judge Raynor QC dismissed the appellants’ application to set it aside on 14 October 2014.

The Court of Appeal considered the renewed application for permission to appeal. The central issue was whether the second adjudicator should have resigned and whether the procedural objections disclosed any real prospect of successfully defending the claim.

1. Permission to appeal. Burnett LJ granted permission on one ground only: whether the judge had erred in concluding that the appellants had no real prospect of defending the claim on the basis that the second adjudicator should have resigned under clause 7.2.
2. The proposed jurisdiction challenge was properly arguable and had a real prospect of success. The issue concerned the meaning of the contractual expression same or substantially the same dispute. The court was assisted by three decisions concerning identical wording in the statutory adjudication scheme: Benfield Construction [2008] EWHC 2333 (TCC), Carillion Construction [2011] EWHC 2910 (TCC) and Quietfield [2006] EWCA Civ 1737. Although the statutory scheme did not apply directly, it had been incorporated into the contract, so its interpretation was likely to determine the meaning of the parallel contractual provision.
3. The procedural challenge to the accelerated enforcement procedure did not justify permission. The earlier procedural history was no longer material. At the set-aside hearing the judge had reconsidered the arguments under CPR part 24. The real issue was whether the appellants had a real prospect of successfully defending the claim.
4. Time for renewing the application was extended despite the notice being lodged two days late. The appellants were acting in person, there was no conceivable prejudice to the respondent, and the proposed jurisdiction point had a real prospect of success.
5. The appeal was directed to proceed on an expedited basis because it concerned contractual provisions intended to secure rapid preliminary resolution of building disputes. The court also recommended mediation.

• Court of Appeal (Civil Division) — On 22 October 2015, the renewed application for permission to appeal was granted on a single jurisdiction ground, with time extended and directions for an expedited appeal: [2015] EWCA Civ 1316.
• Manchester District Registry — His Honour Judge Raynor QC entered summary judgment enforcing the adjudicator’s decision and, on 14 October 2014, dismissed the appellants’ application to set it aside.