Paragraph 2(1) of the Scheme provided that “following the giving of a notice of adjudication” (and subject to any agreement between the parties as to who shall act as adjudicator, and where no adjudicator or adjudicator nominating body was named in the contract) the referring party was to make a request to a nominating body to appoint an adjudicator. Paragraph 3 of the Scheme further provided that the request should be “accompanied by” a copy of the notice of adjudication. It was clear that the adjudication notice has to be given before the application to appoint the adjudicator was made. The judge held that the adjudicator was not validly appointed because Lane End had submitted its request for appointment of the adjudicator before giving its notice of adjudication, thereby breaching paragraph 2(1) and following Vision Homes[14]. Kingstone had also contended as an alternative that the adjudicator had effectively resigned and for that reason the award was of no effect. The judge rejected that submission. First, the adjudicator had not in fact resigned. Second, had he wished to do so, it would have been necessary for him to give notice to both parties, as required by paragraph 9(1) of the Scheme, and he had not done so. The next issue was whether Kingstone had waived the error in the adjudicator’s appointment by full participation without having made a sufficient and specific reservation of its position. The judge held the answer to this was that even had it wished to do so, Kingstone could not waive such an error.
The adjudication
An adjudicator was appointed by RICS. Kingstone immediately and throughout the process reserved their position as to his jurisdiction on various specific grounds and more generally though they did not initially articulate the point which eventually was taken in court. Their initial objection not later pursued was that the document relied on as the adjudication notice was not effective to commence proceedings. As a result of an automatic response from Lane End to his email[13], it appeared to the adjudicator that they had closed for business and he mistakenly stated that this brought the adjudication to an end. He did so in an email to Lane End but not copied to Kingstone. He did not in fact resign (as the court later found) but continued with the adjudication. He decided that the document relied on as the adjudication notice was effective. Despite the adjudicator’s jurisdiction and reservations of rights, Kingstone participated in the adjudication which ran its full course. further objections to
The adjudicator found for Lane End and awarded them the sum claimed.
In court
Lane End commenced proceedings and applied for summary judgment to enforce the award and Kingstone applied for a declaration that the award was a nullity and unenforceable on the grounds that the adjudicator had not been effectively appointed and lacked jurisdiction.
[13] Email dated 8 April 2020 from Lane End, stating that it was closed for business due to the coronavirus (COVID-19) pandemic. [14] Vision Homes Ltd v Lancsville Construction Ltd [2009] EWHC 2042 (TCC)
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