Citation: [2015] EWHC 2915 (TCC); [2015] All ER(D) 220 (Oct); [2016] CILL 3755
Nature of case:
By these proceedings ICI sought to enforce an adjudicator’s decision. The adjudication, the second in a series of three, concerned ICI’s contractual right to delivery by MMT of certain documents. The adjudicator upheld ICI’s entitlement to the documents but refused to order delivery, on the grounds that the period specified in the referral notice (7 days) was inadequate and, he had held, he had no jurisdiction to order delivery of the documents in any longer period.
ICI sought to obtain a court order for delivery up of the documents on the basis that such an order would give effect to the decision as to ICI’s entitlement to the documents. ICI argued that the position was analogous to the case where an adjudicator determines that money is owed, but does not in fact direct payment in the decision. ICI also argued that any practical considerations arising from the short period of time specified in the referral notice had been superseded by the passage of time between the adjudication and the enforcement hearing.
There are relatively few cases where the TCC has been asked to enforce an adjudicator’s decision by an injunction or court order. Such relief was held to be inappropriate where the claim was for payment of money (Macob Civil Engineering Ltd v Morrison Construction Ltd [1999] BLR 93). In this case the court rejected the claim for an order for deliver up on the basis that such an order went further than the adjudicator had been prepared to go. Whilst the adjudicator had tied his decision to the short period of time, there were or may have been other reasons for refusing to make the order and it was not appropriate for the court to substitute its own decision.
A further issue in the case was whether the adjudicator’s decision was valid at all, MMT contending that the adjudicator had adopted the wrong procedure (and/or in any event that ICI had changed procedure during the course of the adjudication).
The contract appeared to contain two competing sets of provisions for adjudication: (i) clause W2 as it appears in the NEC3 form as published and a nominating body (CIArb) identified in the contract data, and (ii) an “appendix 2” which referred to TECSA adjudication rules and a different nominating body (RICS). ICI had proceeded with CIArb and the adjudication had been conducted in accordance with the NEC3 procedure set out in clause W2, notwithstanding reference to appendix 2 in the referral notice.
The court upheld ICI’s case on these issues on various grounds.
However of interest is the judge’s analysis as to whether the appointment of the adjudicator by the correct nominating body but pursuant to or under the wrong rules would invalidate the decision.
Counsel: Finola O’Farrell QC appeared on behalf of the Claimant and Justin Mort QC appeared on behalf of the Defendant.
