Van Oord Acz Ltd and Harbour & General Works Ltd Joint Venture v The Port of Mostyn Ltd
The employer's notice to refer the dispute as to the validity of the adjudicator's decision was validly served at the joint venture contractor's Morecambe offices
10 September, 2003
VAN OORD ACZ LTD AND HARBOUR & GENERAL WORKS LTD JOINT VENTURE v THE PORT OF MOSTYN LTD
Technology and Construction Court
Her Honour Judge Frances Kirkham
10 September 2003
The contractor was a joint venture of two partners. The contract incorporated the ICE Sixth Edition. Clause 66(7) of that contract provided that any decision of an adjudicator was binding until finally determined by court or arbitration proceedings. Clause 66(9)(b) provided that any decision had to be challenged within three months after its delivery. Clause 68(1) provided that any notice to be given to the contractor was to be served at the contractor’s principal place of business.
Disputes arose and were referred to adjudication. The adjudicator delivered his decision. The employer purported to refer the adjudicator’s decision to arbitration. The joint venture contended that the notice in the form of a letter from the employer that was served on it at its Morecambe office within the three months period was not served at its principal place of business with the result that the it did not constitute a valid notice to refer the adjudicator’s decision to arbitration.
Judge Kirkham concluded that as far as the employer was concerned, the joint venture’s principal place of business was initially at Newbury. It then moved site. After demobilisation of the site office, the only outstanding matters were the JV’s claims, maintenance work and work required during the defects liability period. During the relevant period the JV’s business consisted mainly of the notification and pursuit of claims. The JV’s commercial manager dealt with all contractual matters from Morecambe. The Engineer served his decisions at Morecambe. The JV had not told the employer to serve notices at Newbury. After demobilisation of site the JV’s principal place of business for the relevant period was Morecambe. There was nothing to indicate to the employer that (as the JV submitted) potential legal problems and major decisions were dealt with at Newbury. To the contrary the clear picture from the correspondence was that such matters were being dealt with at Newbury. Whilst the parties could have achieved greater certainty by identifying with more precision which address was to be used for the service of contractual notices, this was simply not done.
In the absence of addresses for the services of contractual notices being definitively identified, the courts will take a pragmatic view as to whether the address actually served should be regarded as a party’s principal place of business.