Lane End Developments Construction Ltd v Kingstone Civil Engineering Ltd

A request for the appointment of an adjudicator under the Scheme must follow the notice of adjudication. A request made first cannot validly found the adjudicator’s appointment or jurisdiction, even though the Scheme permits notice to be given at any time. The defect is not merely procedural and is not capable of waiver by election where no adjudication existed when the request was made. Participation will generally waive a jurisdictional objection unless the responding party reserves its position clearly and appropriately, but a reservation may preserve a challenge where its conceptual basis is identified. Estoppel requires a sufficiently clear promise, representation or shared assumption, together with reliance and detriment. A covert recording was excluded where its probative value was limited, it was served too late, and its admission would create procedural unfairness.

Lane End was the main contractor and Kingstone its subcontractor for enabling works. The subcontract did not expressly provide for adjudication, so the Scheme applied by implication under the Housing, Grants, Construction and Regeneration Act 1996.

Kingstone requested the RICS to nominate an adjudicator before serving its notice of adjudication. The adjudicator later decided that Kingstone was entitled to £356,439.19. Lane End sought a declaration that the decision should be set aside or not enforced. Kingstone sought summary judgment to enforce it.

The principal issues were whether the adjudicator had been validly appointed, whether any defect had been waived by election or preserved by reservation, and whether Lane End was estopped from challenging jurisdiction.

1. Evidence. The court excluded the covert recording of the parties’ meeting and the accompanying witness statement under CPR 32.1. The evidence had limited probative value on Lane End’s knowledge, was served too late following the June order, created a significant tactical disadvantage, and raised insufficiently argued issues concerning privacy under ECHR Article 8 and the GDPR.
2. Appointment and jurisdiction. Under paragraphs 1(1), 2(1) and 3 of the Scheme, the notice of adjudication had to precede the request for appointment. The 2011 amendment permitting notice to be given at any time did not alter that sequence. The request made before the notice could not found a valid appointment, and the adjudicator therefore lacked jurisdiction to make the decision.
3. Termination email. The adjudicator’s email was objectively capable of being construed as a notice of resignation, but it was served only on Lane End. Paragraph 9(1) required written notice to the parties to the dispute. The email therefore did not terminate the adjudication, and the adjudicator remained in office if otherwise validly appointed.
4. Waiver by election. The defect was not merely procedural. Before the notice was served there was no adjudication and no relevant choice which Lane End could elect to make. The defect was consequently not susceptible to waiver by election. Alternatively, Lane End lacked knowledge of both the relevant facts and its legal right of election before the decision.
5. Reservation and estoppel. Applying the adjudication principles identified in Bresco Electrical Services Ltd v Lonsdale, Lane End’s repeated reservations, read with its specific jurisdictional objections, were sufficient to preserve the challenge. Kingstone failed to establish any clear promise, representation, mistaken shared assumption, reliance or detriment. Its estoppel case therefore failed.
6. Judgment was given for Lane End on the Part 8 claim. Kingstone’s application for summary judgment on the Part 7 claim was dismissed. Further submissions were invited on the form of order, consequential matters and costs.