Brighton University v Dovehouse Interiors Ltd (TCC - 4.4.2014)
The contractor commenced the adjudication for the purpose of the saving proviso in relation to the conclusive evidence clause when it served its first notice of adjudication under paragraph 1 of the Scheme for Construction Contracts.
4 April, 2014
BRIGHTON UNIVERSITY v DOVEHOUSE INTERIORS LTD
Technology and Construction Court
4th April 2014
The conclusive evidence clause provided that the final certificate was to constitute conclusive evidence of the sums to which it related. The “saving proviso” in clause 1.9.2 to the final evidence clause provided that the certificate was not to constitute such evidence in relation to those matters forming the subject matter of adjudication proceedings commenced not later that 28 days after the certificate’s issue.
Carr J held that the contractor commenced the adjudication for the purpose of the “saving proviso” in clause 1.9.2 when it served its first notice of adjudication (just before the expiry of the 28 day period) under paragraph 1 of the Scheme for Construction Contracts.
The judge stated that the more natural construction of clause 1.9.2 is that proceedings are commenced when a notice of adjudication is given under paragraph 1 when looking at the wording of clause 1.9.2 and that of the Scheme together as a whole without more, The notice of adjudication (and not the referral notice) is the document that identifies and governs the scope of the proceedings and may be said to resonate directly with the document envisaged as engaging the saving proviso in clause 1.9.2. Whilst paragraph 1(1) refers to the giving of notice of "intention to refer" a dispute, the giving of notice under that paragraph is defined as the giving of "notice of adjudication", which may be relevant to the question of interpretation as to what the parties can objectively be said to have intended and suggests that the notice is to be treated as something more than mere notice of intention. Court proceedings are commenced without a judge being appointed and arbitration proceedings may be commenced without an arbitrator being appointed. The requirements of paragraph 1(3) are very similar to the requirements for a claim form as contained in CPR 16.2 and 16PD.2. The requirements for what must be set out in the notice of adjudication go well beyond what would be required merely to give notice of an intention to refer, namely the nature and a brief description of the dispute and of the parties involved, details of where and when the dispute has arisen and the nature of the redress sought. The first notice of adjudication given by the contractor demonstrated those requirements because it did not just give notice of an intention to refer the dispute, expressly sought relief, including interest and costs, and indicated by its heading of "in the matter of an adjudication" the existence of actual, and not just intended, proceedings.