Ferns & Anor v West & Ors

A partnership may be named in adjudication proceedings by the business name under which it contracted and carried on business. The absence of the partners’ individual names does not, without more, deprive the adjudicator of jurisdiction where the contracting entity and responding party are clear. The court may enforce the adjudicator’s decision by summary judgment. A technical objection not raised during the adjudication, despite legal representation and full knowledge of the parties’ identity, will carry little weight.

The claimants sought enforcement of an adjudicator’s decision arising from domestic building works carried out under a contract with Haven Build. Haven Build was a trading name of Keith West and Adam West and was not a separate legal entity. The defendants argued that the adjudication was invalid because it named Haven Build rather than the individual partners. The claimants also sought judgment in default against Linda West, who had failed to acknowledge service.

1. The claimants were entitled to summary judgment against Keith West and Adam West, and to judgment in default of acknowledgement of service against Linda West.
2. Haven Build was the name used by the defendants in the contract and throughout the adjudication. There was never any uncertainty about the identity of the responding party, and the defendants’ solicitors acted throughout without taking the technical objection.
3. The judge applied the approach in Durham County Council v Jeremy Kendall (t/a HLB Architects), [2011] EWHC 780 (TCC). A trading name may identify the individual who is legally responsible for the business. The adjudication was therefore brought against the correct party in substance.
4. The defendants’ argument that the adjudicator lacked jurisdiction because the individual partners were not named was wholly unmeritorious and wrong in law. It represented an attempt to avoid enforcement of the adjudicator’s decision.
5. There had also been no reservation of the point during the adjudication. If the objection had had any prospect of success, a reservation of rights would have been required.