The recent Technology & Construction Court (TCC) decision in Land End Developments Construction Limited v Kingstone Civil Engineering Limited provides a stark reminder to practitioners of the importance of carefully following the requirements of the Scheme for Construction Contracts (England & Wales) Regulations 1998 (the “Scheme”).
In this case, the judge in the TCC refused to enforce an adjudicator’s decision where the notice of adjudication was served after the referring party submitted a request to appoint an adjudicator (notwithstanding it was the same day). The dispute related to a sub-contract to which the Scheme applied. Such action, therefore, breached paragraph 2(1) of the Scheme.
Typically, adjudication enforcement cases based on jurisdictional points such as this are challenged on the basis that the opposing party waived any alleged procedural defect. However, here the judge went further to say that the responding party could not waive this error even if it wished to do so. This was not deemed to be a procedural defect in the adjudicator’s appointment, but rather he “was not appointed to act in the adjudication at all”.
This case is a stark reminder that some requirements within the Scheme are fundamental to a valid adjudication and how easy it is to get tripped up with a procedural requirement: getting these steps right from the outset is key. Our highly experienced Construction team can help.