Comment
As a matter of principle the court could not see why not. Clause 3.1 did not provide for formal "service", rather the simple giving of notice. Nor did clause 3.1 make any stipulation about the mode of giving notice.
The Scheme expressly provides for the giving of notice of intention to commence adjudication proceedings before the referring party applies for the appointment of an adjudicator. Where the contract provisions does not comply with the Act, it provides that the adjudication provisions of the Scheme shall apply. In this case the IChemE provisions on adjudication complied with the Act and therefore the Scheme provisions did not come into play. Had the Scheme provisions applied, the notice of adjudication would have had to have been given before the application for the appointment of an adjudicator. It should also be remembered that where any of the provisions of the Act as to adjudication are missing or do not comply with the Act, then all of the provisions of the contract as to adjudication are replaced by the adjudication provisions of the Scheme.
Defence 2 – hybrid contracts
As this was a hybrid contract where some of the works were governed by the Act, and some were not, MW argued that the adjudicator should have taken into account the value of its counterclaim said to be worth £4.3m, though they also said he was not entitled to value it as it arose from the excluded operations. This approach, described by the judge as “look but don’t touch”, appeared to be a tactical manoeuvre. The adjudicator had included a ‘nil’ value in his decision, thus taking the counterclaim out of the adjudication altogether. He was not valuing something he had no jurisdiction to deal with. In any event as there was no payless notice, the adjudicator was not obliged to take the counterclaim into account.
Defence 3 – retention
In adjudication number 3, the parties had agreed that all the payment milestones under the contract had been met which meant there was power to deal with the retention. The adjudicator in adjudication number 4 was bound by that position. MW could not resile from that position in adjudication number 4; they could not approbate and reprobate.The adjudicator was then entitled to decide when takeover had occurred which led him to award the release of half of the retention.
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