Transport for Greater Manchester v Kier Construction Ltd (T/a Kier Construction - Northern)

Under an NEC-style adjudication contract, a notice preserving the right to challenge an adjudicator’s decision must be clear and unambiguous, but it need not state detailed grounds. Contractual communication provisions determine whether the notice is effective. Where representatives have been identified and used throughout the adjudication, their address may become the last notified address for communications concerning that adjudication. A notice may also indicate that payment will be made provisionally and without prejudice. Such payment does not necessarily amount to acceptance of the decision.

The claimant commenced Part 8 proceedings seeking to reverse an adjudicator’s decision in favour of the defendant. The defendant applied under CPR Part 11 for a declaration that the court lacked jurisdiction, arguing that the claimant had failed to give a valid notice of dissatisfaction within the contractual four-week period.

The central issues were whether notice sent to the defendant’s solicitors complied with the contractual communication provisions, whether the notice sufficiently identified dissatisfaction and an intention to refer the matter to court, and whether payment of the adjudicator’s award affected its validity.

1. Application dismissed. The claimant had given a valid notice of dissatisfaction, preserving its right to challenge the adjudicator’s decision and preventing it from becoming final and binding.
2. The contractual communication provisions were mandatory. However, the contract did not require communications to be sent exclusively to the address in the Contract Data. The project extranet identified in the Works Information was an agreed method of communication and contractual record.
3. In the context of the adjudication, the defendant’s solicitors became the last address notified by the defendant for receiving communications. The claimant’s solicitors therefore validly served the notice on them. The same reasoning applied to the claimant’s solicitors, who had been identified and used as its representatives during the adjudication. The court adopted the analysis in Anglian Water Services Ltd v Laing O'Rourke Utilities Ltd [2010] EWHC 1529 (TCC).
4. Clauses W2.3(11) and W2.4 required a notice to make clear that the party was dissatisfied with a matter decided by the adjudicator and intended to refer it to the court. They did not prescribe particular words or require detailed grounds. The claimant’s statement that the adjudicator had erred in law and in interpreting the contract, together with its stated intention to seek formal resolution reversing the decision, satisfied that requirement.
5. The notice did not breach the requirement that notifications be communicated separately. The accompanying reference to provisional payment arose from the adjudication decision and confirmed that payment would be made despite the intended challenge.
6. The later email would have been substantively sufficient, but was ineffective because it was not sent in accordance with the contractual communication method or to the notified solicitors’ address. Consequential matters were adjourned for further consideration if not agreed.