Price V Carter
Technology and Construction Court
18 June 2010
The contract between the homeowners and the contractor incorporated the JCT Minor Works Form (2005 edition, revision 1 2007). Article 6 provided that if any dispute or difference arose under the contract either party could refer it to adjudication. Article 7 provided that, subject to article 6, any dispute or difference between the parties arising out of or in connection with the contract was to be referred to arbitration. It was contended that the effect of articles 6 and 7, when taken together, was that the adjudication provision prevailed so that adjudication became the primary mode of dispute resolution with the result that a dispute had to be referred to adjudication in preference to arbitration unless both parties agreed otherwise. This was because the words "subject to article 6" in article 7 meant that article 6 was intended to have priority over article 7.
Edwards-Stuart J rejected this contention. The effect of articles 6 and 7 was that a party who wished to refer a dispute for resolution has the choice of either adjudication or arbitration and if a party chose arbitration, the other party had no option but to accept that choice. If the words "subject to Article 6" were not included in article 7 of the JCT Minor Works Form, arbitration would become the mandatory method of dispute resolution because article 7 would effectively read that any dispute was be referred to arbitration so that the reference of any dispute to arbitration would be mandatory. The purpose of including the words "subject to article 6" was to give the parties the alternative of referring a dispute to adjudication if that was what they wished to do. Apart from anything else the contract would have to include such a provision if it was to be compliant with section 108 of the Construction Act 1996. The two articles taken together give the parties or, more correctly, the party who wished to have a dispute resolved, the choice of either adjudication or arbitration. Whilst there were forms of contract which provided that the reference of a dispute to adjudication was a necessary prerequisite of the right to refer that dispute to arbitration, such provisions were usually in clear terms and there was no such clarity of language in articles 6 and 7.