Connex South Eastern Ltd v MJ Building Services Group Plc (Part I)
The contract was one in writing notwithstanding no written acceptance of the contractors tender, the acceptance of a repudiation of a contract did not prevent an adjudication and it was not an abuse of the process for the contractor to have started adjudication proceedings over a year after the contractor had purported to accept the employers repudiation
25 June, 2004
CONNEX SOUTH EASTERN LTD v MJ BUILDING SERVICES GROUP PLC
Technology and Construction Court
His Honour Judge Richard Havery QC
25 June 2004
The employer made various jurisdictional challenges, all of which were rejected by Judge Havery.
Firstly the judge held that the contract was in writing within the meaning of section 107 of the Construction Act on the basis that it was irrelevant that there was no written acceptance of the contractor’s tender where there was no suggestion that there was an oral acceptance containing terms. In any event the employer’s acceptance of the contractor’s written tender containing the express contractual terms was evidenced by written meeting minutes within the meaning of section 107(4).
Secondly the judge held that the acceptance of a repudiation of a contract did not bring to an end a provision as to adjudication on the basis that it was well established that adjudication could take place after the works had been completed. It was also established by the House of Lords’ decision in Heyman v Darwins (1942) that an arbitration clause survived the discharge of a contract by acceptance of a repudiation and the reasoning in that case was equally applicable to an adjudication provision.
Thirdly the judge held that It was not, as the employer contended, an abuse of the process for the contractor to have started adjudication proceedings over a year after the contractor had purported to accept the employer’s repudiation of the contract on the basis that the entitlement of a party to a construction contract to give notice of his intention to refer a dispute to adjudication “at any time” under section 108(2)(a) of the Act should be given their plain and natural meaning. Whilst there was no limitation period for an adjudication, a limitation defence had to be taken into account by the adjudicator on the basis that if he failed to do so, any payment made pursuant to his award would give rise to a claim for restitution.
The courts can sometimes be persuaded to hear jurisdictional challenges before the adjudication itself takes place. Judge Havery in the instant case agreed to determine these challenges on this basis.