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Challenging the adjudicator’s finding in Part 8 proceedings – Construction of time provision
Andrew Bellis v Sky House Construction Ltd [2023] EWHC 1473 (TCC) Jason Coppell KC
The claimant AB sought the final determination of a finding by the adjudicator that it had wrongly terminated the contractor ’s (Sky) employment under clause 6.4 of a JCT Minor Works 2016 Building Contract, as a result of serving notice of termination prematurely. The court had first to decide whether it was a challenge to an award which could be entertained on a Part 8 application. In the usual case, the adjudicator’s findings of fact or law were not open to challenge on enforcement and were binding right or wrong. This case however was unlike Global Switch 6 , where the challenge took place against enforcement by the successful party. Nor was it like Hutton 7 , where the P art 8 application was by way of defence to enforcement of the adjudicator’s award. The award in question was not concerned with the payment of money and there were no enforcement proceedings in
respect of it. The award had led to a second adjudication in which a money award had been made in
favour of Sky but those enforcement proceedings were some way off. By its Part 8 application, AB
claimed the final determination of a question decided by the adjudicator. This meant the court was not bound by the adjudicator’s finding in respect of the matter under challenge.
The question was a short one of construction of the contract and required no evidence and so was
suitable for summary determination.
The court took the view, and the parties ultimately agreed, that the only finding which was suitable for
final determination on the Part 8 challenge was as to the meaning of clause 6.4 of the JCT form: was the notice of termination served under clause 6.4.2 given the required number of days after the ‘warning notice’ under clause 6.4.1 or was it premature? The first (‘warning’) notice was given by email on Wednesday 1 September, and assumed (as claimed) to have also been given by hand later the same evening requiring Sky to take steps to remedy alleged breaches. The second notice terminating Sky’s employment was given by em ail on Wednesday 8 September, by email and again assumed as claimed to have been delivered by hand on the same evening
after working hours.
6 Global Switch Estates 1 Ltd v Sudlows Ltd [2020] EWHC 3314 (TCC)
7 Hutton Construction Ltd v. Wilson Properties (London) Ltd [2017] EWHC 517 (TCC)
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