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There were a number of disputes between the parties. Galliford Try approached the Institution of Civil Engineers (ICE) to appoint Mr. Howard Klein as adjudicator. Lanes objected to his appointment, and Mr. Klein did not proceed with the adjudication, although he did not resign. Galliford Try made a further application to the ICE and Mr. Daniel Atkinson was appointed on 24 March. Lanes issued the present Part 8 proceedings seeking to restrain Galliford Try from pursing its adjudication primarily before Mr. Atkinson. The essence of the dispute was whether Galliford Try had repudiated the adjudication agreement. This matter was dealt with in another judgment, [2011] EWHC 1035 (TCC).
The second issue, dealt with in the present judgment, concerned the appointment of Mr. Atkinson. Lanes alleged that the referral and documents attached to it were sent late. The underlying adjudication rules were those contained in the Civil Engineering Contractors Association Form of Subcontract July 1998, Reprinted With Amendments in February 2008 for use in conjunction with the ICE Conditions of Contract, 6th Edition. Clause 18B(1(b) of these provided:
“(b) Unless the adjudicator has already been appointed he is to be appointed by a timetable with the object of securing his appointment and referral of the dispute to him within 7 days of such notice.”
The notice of adjudication was served on 21 March 2011, and Mr. Atkinson informed the parties of his appointment on the 24 March. Therefore, under the rules, Galliford Try had to send its referral/statement of case to Mr. Atkinson, copied to Lanes, not later than Saturday 26 March. Mr. Atkinson asked Lanes’ consultant, Mr. Bunton, where the copy of the referral/statement of case should be sent. Mr. Bunton responded that he did not have instructions to accept service. It was too late to send the documents by courier on the 25 March, which was a Friday. The referral, but not the costs records referred to in it, were e-mailed to Mr. Atkinson on before close of business 26 March and received by him. It was accepted that the actual costs records were partly e mailed on 26 March to Lanes and the adjudicator but a number of them were e mailed after midnight on 26/27 March. Lanes received the hard copy on Monday 27 March. This weekend was the weekend that the clocks changed to British Summer Time.
The judge had to determine whether there had been effective service for the purposes of clauses 4.1 and 4.2 of the ICE Adjudication Rules, which state:
“4.1 The referring Party shall within two days of receipt of confirmation under 3.1, or notification of selection under 3.2, or appointment under 3.3 send to the Adjudicator, with a copy to the other Party, a full statement of his case which should include:
“(a) A copy of the Notice of Adjudication;
“(b) A copy of any adjudication provision in the Contract, and:
“(c) The information upon which he relies, including supporting documents.
“4.2 The date of referral of the dispute to adjudication shall be the date upon which the Adjudicator receives the documents referred to in paragraph 4.1. The Adjudicator shall notify the Parties forthwith of that date.”
In the judge’s view, a distinction should be made between “send” and “receive”. Clause 4.1 spoke of the referring party sending to the adjudicator within two days of, in this case, the appointment of the adjudicator and that must mean, in context, despatch to the adjudicator. The judge was confident that the word “send” meant broadly that was because clause 4.2 talked about the date of the referral of the dispute being the date upon which the adjudicator receives the documents. That was logical, fair and sensible because often the date of sending, the date of despatch, is different from the date when the adjudicator receives the documents. The ICE Adjudication Procedure differentiated between the two.
In the present case, the referral itself was delivered to the adjudicator within the two days and the remainder of the documentation was delivered either within the two days or within a very short period, a couple of hours thereafter. Clauses 4.1 and 4.2 were not open-ended. They did not mean that once an adjudicator is appointed, the referring party has six months to serve its referral. In the present case, the adjudicator was broadly served within time and the fact that the copy did not fully get to Lanes within two days did not matter in this case. They certainly had it on the seventh day after the service of the notice of adjudication. The documents attached to the referral were in fact served by e-mail on Lanes’ e-mail within two days, apart from a number of documents which were served by e-mail within two hours of midnight on the weekend that the clocks changed. It didn’t matter that there was no one at Lanes’ office to pick them up. If Lanes didn’t have a system in place to allow people to pick up e-mails over a weekend, then that was unfortunate. Mr. Atkinson’s jurisdiction could not be challenged on the basis that service of the referral was made late.
Lanes Group plc v Galliford Try Infrastructure Ltd., [2011] EWHC 1234 (TCC)
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