Jurisdiction – timing of service of adjudication notice: C Spencer Ltd v MW Tech Projects UK Ltd [2021] EWHC 1284 (TCC) Waksman J CSL applied for summary judgment to enforce an award in its favour for £3,397,029.03 dated 14 January 2021 in respect of adjudication no. 4. The application was opposed on three grounds all of which it was said went to the jurisdiction of the adjudicator.
"Where an adjudicator is not appointed under 4.1 or 4.2, the party issuing the notice may request ICHEME to nominate an adjudicator. Such request shall be in writing..." On what the court called “the timing point” it held there was nothing in the words of clause 3.1 or 4.3 that required the sequential issuing of the two types of document. MW relied on the fact that clause 3.1 came before clause 4.1. The court rejected that as a very weak argument. It was then said that in previous adjudications between the parties, the notice of adjudication had been sent earlier. In the absence of some form of estoppel argument, which had not been raised, this was irrelevant. There was no previous authority dealing with these provisions which mandated such an approach. Cases dealing with the service of notices under the Scheme were not helpful in construing the provisions of the sub-contract. No logical or practical reason has been put forward in support of the timing point. The proof of the pudding was in the eating. On receipt of the email, MW acted immediately. In the 4th edition of Coulson on Adjudication (2018), 18.16 it was recommended that both notices were sent at the same time. That militated against any idea of unfairness or impracticality where notices were sent simultaneously. There was, in truth, nothing in the timing point and it was rejected. MW took a further point, as to the mode of service. They said that copying MW in on an email where the addressee was ICHEME, albeit with all the correct documents, could not amount to the "giving of notice" as required by clause 3.1 of the Grey Book.
Defence 1
The first ground involved a variation on a settled theme. Under the Scheme, and in accordance with s 108(2) of the Act, it has been held that a notice of adjudication has to be given before the referring party applies for the appointment of an adjudicator. In this case CSL send an email to ICHEME (the ANB), enclosing a copy of the notice of adjudication and at the same time copied the email to the responding party, MW. The latter objected that the notice had not been served before the application to the ANB to appoint the adjudicator and thus was ineffective. The adjudicator made a non-binding decision that the notice had been effectively given and he had jurisdiction. The court looked at the parties’ sub-contract which was based on the IChemE Grey Book clause 3.1 of which provided as follows: "The party wishing to refer to arbitration any dispute arising or in connection with a contract may give a notice at any time to that effect to the other party".
Clause 4.3 was applicable here and provided:
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