been first, that the planning application for the new home included a ticked box for ‘market housing’, and second, the submission of a purported payless notice which was taken as an admission that the statutory scheme applied. Mr and Mrs James also argued that the payless notice was valid. The adjudicator rejected this argument. The adjudicator decided that RBH was entitled to be paid the sum of £663,016.16, plus interest, and ordered that Mr and Mrs James be responsible for his fees and expenses of £9,000. Mr and Mrs James did not pay any sum.
Enforcement
The court reminded itself of the test for summary judgment set out in Part 24.3 CPR and in case law applicable to adjudication proceedings where a jurisdictional defence was raised [9] noting that in this case the jurisdictional challenge was dependent on fact and evidence and the court had to consider whether, on the evidence before it, Mr and Mrs James had no real prospect of succeeding in their defence.
The Law
The court was referred to multiple reported and unreported cases. In none of these had the occupier exception been held to apply. The leading and most helpful case appeared to be Westfields Construction Ltd v Lewis [10] a decision of Coulson J who noted at paragraph 10 that: "Section 106 was intended to protect ordinary householders not otherwise concerned with property or construction work, and without the resources of even relatively small contractors, from what was, in 1996, a new and untried system of dispute resolution. In this way, section 106 excluded adjudication in respect of construction works carried out for those who occupied and would continue to occupy as their home the property that was the subject of the works (even if they had to move out when those works were carried out), or who had bought the property and intended to live there when the construction works were completed.’ At paragraph 11, he noted this needed ‘to be approached with common sense: it ought to be plain, on a brief consideration of the facts, whether the employer is or is not a residential occupier within the terms of the exception.’ At paragraph 6, Coulson J, referring to his own earlier decision [11] concluded that, in relation to intention to occupy, ‘what mattered was the employer's intention at the time of the formation of the contract’ which the court agreed ‘must be right’.
A ‘substantial body of evidence’ was put before the court (much more than was available to the adjudicator) as to Mr and Mrs James’ intentions both at the time of the
10
www.ciarb.org
Made with FlippingBook - professional solution for displaying marketing and sales documents online