PP Construction Ltd v Geoffrey Osborne Ltd

A contractual time limit for correcting clerical errors in an adjudication award must be applied objectively. A request is operative only if it identifies the error, explains why it is an error and indicates the required correction with sufficient clarity for a reasonably competent adjudicator. An unclear or illegible attachment forming an integral part of the request may invalidate the request. The contract may permit a further operative request where the first request was ineffective or the adjudicator failed to respond, provided the contractual longstop remains satisfied. A construction producing the disproportionate result that a correctable error becomes incapable of correction is not readily adopted.

PP sought summary judgment for the unpaid balance arising from an adjudicator’s corrected award. The adjudicator had originally awarded £229,005.23, but later corrected a clerical error involving the deduction of a 5 per cent discount twice and substituted a higher sum.

Geoffrey Osborne Ltd argued that the correction was invalid because PP’s first email constituted a request under clause 70(9) of the contract and the correction was made more than seven days later. The central issues were whether the first email and attachment constituted an operative request, whether later communications could constitute further requests, and whether the adjudicator corrected the award within the contractual time limits.

1. Summary judgment. PP was entitled to summary judgment for the sum claimed.
2. Meaning of an operative request. Clause 70(9) required an objective assessment. A request had to identify the clerical error with sufficient clarity to enable a reasonably competent adjudicator to understand where the error occurred, what it was, why it was erroneous and what correction was required.
3. First communication. The email of 26 November 2014 was not an operative request. Its attachment was intended to form an integral part of the request, but was effectively illegible. The email alone was also insufficiently precise. The adjudicator’s recognition that the complaint concerned a duplicated 5 per cent discount did not cure the lack of clarity.
4. Later request. The email and attachment of 28 November 2014 satisfied the requirements of an operative request. The adjudicator issued the corrected award on 5 December, within seven days of that request and within the 14-day period for making a request under clause 70(9).
5. Further requests. Although unnecessary to the result, the court held that clause 70(9) did not prohibit further operative requests, at least where the adjudicator had failed to respond to the initial request within time. The clause was compatible with a 21-day maximum period calculated by aggregating the 14-day request period and the seven-day correction period. There was no basis for implying a term prohibiting further requests. The need for speed and certainty did not justify the draconian construction advanced by GOL.
6. The adjudicator’s correction was therefore effective, and summary judgment was granted to PP as requested.