Larfarge (Aggregates) Ltd v Newham London Borough
The adjudicator communicated his decision to the parties when he sent it by e-mail to them on the basis of what he had said in his letter of initial directions as to correspondence (other than for the publication of his decisions)
24 June, 2005
24 June 2005
LARFARGE (AGGREGATES) LTD v NEWHAM LONDON BOROUGH
24 June 2005
The contract was for effecting minor roadway engineering works. A dispute arose which was referred to adjudication. The issue for determination was whether the local authority had served its notice of arbitration referring the dispute which formed the subject matter of the adjudication within three months of the giving of the decision (as was required by the contract). Determining this issue involved consideration of when the adjudicator had given his decision. In this connection the adjudicator stated in his letter of initial directions that it was his usual practice to correspond by fax without the use of post, other than for the publication of his decisions, and occasionally to copy documents by e-mail and sent the decision (in the first instance) by e-mail.
Cooke J held that the adjudicator had given his decision to the parties when he sent it by e-mail to them on the basis that there was no contractually agreed procedure for the adjudication in question whereby his decision had to be given in any particular way. The adjudicator's statement in his letter did not amount to a contractually agreed procedure whereby his decision had to be given in any particular way and he was not fettered by those statements from sending his decision in any way he chose. All the adjudicator was doing was to give advance notice of his usual method of communication to ensure that the parties did not object to communications by fax with copy documents sent by e-mail. In particular he was not committing himself to sending his decision by post where the parties were content to communicate by e-mail.
It was not the case, as the local authority contended, that the giving by the adjudicator of his decision was subject to the contractual provision governing the giving of contractual notices (by post) with the result that the decision was not given until it was (subsequently) posted by the adjudicator insofar as the contract provided for the giving of a number of notices, such as a "notice of dispute", a "notice in writing" seeking agreement to conciliation, a "notice of adjudication", a "notice to refer" and a "notice to concur", but these were notices to be given by one party to the other.