Cases - Palmac Contracting Ltd v Park Lane Estates Ltd

Record details

Name
Palmac Contracting Ltd v Park Lane Estates Ltd
Date
(2005)
Citation
BLR 301 TCC
Legislation

Housing Grants, Construction and Regeneration Act 1996

Keywords
Construction - adjudication - jurisdiction - natural justice - nomination and appointment of adjudicator - whether appointment valid - JCT standard form building contract - JCT adjudication procedure - enforcement - summary judgment -whether more than one dispute can be referred in a single notice - multiple disputes - Housing Grants, Construction and Regeneration Act 1996, section 108
Summary

Palmac was applying for summary judgment to enforce the decision of the adjudicator concerning an application for payment. Park Lane Estates were resisting enforcement on the following grounds:

  1. There was no dispute at the time of the reference to adjudication, and as such the adjudicator had no jurisdiction to make a valid decision.
  2. The contractual provisions relating to the appointment of the adjudicator were not followed, and this deprives the adjudicator of jurisdiction.
  3. The adjudicator departed from an agreed position between the parties and/or failed to afford the parties the opportunity to comment on this departure. This was a breach of rules of natural justice.

With regard to point (1), Park Lane Estates argued that the application for payment had not been served in accordance with the provisions of the contract. It had been served by e-mail, whereas they contented that it could only be properly served by fax or letter. Park Lane Estates contended that until the application for payment was properly served there could be no dispute in relation to any entitlement pursuant to it.

The judge concluded that this was a point that had been referred to the adjudicator and on which the adjudicator had made a valid decision.

Therefore it was not open to the court to go behind the adjudicator's decision and enquire whether the adjudicator had answered the question correctly.

With regard to point (2), Park Lane Estates argued that the contract required notice of adjudication to be given to the defendant before the claimant applied to RICS for nomination of an adjudicator.

The judge noted that there was nothing in the Act that prevents nomination before notice of adjudication, although adjudication procedures set out in contracts and in the Scheme may do so. In this case the judge concluded that the JCT adjudication procedure did not require notice of adjudication to be served before nomination, and therefore the claimant did not go outside the procedure envisaged by the contract.

With regard to point (3), the judge concluded that the adjudicator had invited submissions, he had incorporated no new material and he had made no investigations of his own. Further, the judge concluded that the adjudicator is permitted at his absolute discretion to take the initiative in ascertaining the facts and the law. That is what the adjudicator did, and did so on the basis of submissions made and information given by the parties.

The judge concluded that he was entitled to do so and that there was not a breach of the rules of natural justice.