Harding v Paice (No1) (TCC - 15.4.2015)

Harding v Paice (No1) (TCC - 15.4.2015)

The contract, which incorporated JCT Intermediate Building Contract (IC2011), was that the parties intended there to be provision for adjudication despite the parties having deleted article 7, which provided for adjudication


Technology and Construction Court

Ramsey J

15th April 2015

The contract incorporated the JCT Intermediate Building Contract (IC2011) subject to a schedule of amendments. Article 7, which provided for any dispute to be referred to adjudication in accordance with clause 9.2, was deleted and replaced by “number not used”. Clause 9.2 provided that any dispute could be referred to adjudication. The contract particulars in respect of clause 9.2.1 set out the ability of the parties to nominate the adjudicator or adjudicator nominating body or to do neither but to leave the parties to use one of the five nominating bodies identified there. The parties inserted the nomenclature “n/a” in the contract particulars. 

The homeowners’ submitted that the deletion of article 7 and its description as “not used” and putting “not applicable” next to the provision in the contract particulars for the adjudication clause 9.2.1 meant that (i) The parties intended objectively to delete the provision for adjudication and (ii) The adjudication provisions of clause 9.2, which were still within the conditions, were not applicable because the intention from the other amendments was that adjudication should not apply. 

The contractor submitted that (i) Objectively the parties by leaving in clause 9.2 intended that that provision as to adjudication should apply (ii) If the parties had intended adjudication not to apply, it would not have been a question of deleting article 7 but rather rewording it so as to make it clear that adjudication under that article did not apply (iii) However, clause 9.2 remained and it was not necessary to have a separate article in order to bring the provisions of adjudication in that clause into effect and (iv) The provisions of clause 9.2 applied on their own terms.

Ramsey J rejected the homeowners' submissions and accepted the contractor's submissions.  The deletion of article 7 did not mean that adjudication did not apply unless it was the only provision for adjudication, which it was not.  The amendments to IC2011 did not have the effect of taking away the terms of clause 9.2.  The statement in the contract particulars relating to clause 9.2.1 stating "not applicable" might have meant that the parties did not want adjudication or did not want to name the adjudicator or an adjudication body but did not have any effect on the clear wording in clause.