Coulson J’s judgment last week in Balfour Beatty v Modus Corovest (about the Hounds Hill Shopping Centre in Blackpool) was surprising in a number of ways:
Court disregards technical or procedural errors. It was refreshing to see Coulson J brush aside what he saw as technical or procedural errors (non-compliance with parts of CPR Part 24) in order to enforce an adjuducator’s decision. However, it did strike me that, in the past, perhaps when the “merits” of a particular case suited, such procedural or technical errors have been accepted by the TCC as grounds to prevent the enforcement of a decision. One example that springs to mind (and one that is close to my heart) is the late service of a decision, although made and delivered within an extended timetable, not being delivered “forthwith” after a decision had been made).
Adjudicator gives reasons even when decision says otherwise. Despite the adjudicator saying his decision was not reasoned and therefore, on its face, non-compliant with the amended adjudication provisions in the parties’ contract, Coulson J disagreed and found that, as a matter of fact, the decision did contain reasons.
Interestingly, Coulson J also suggests that, even if it wasn’t a reasoned decision, as Modus did not say it had suffered prejudice as a result of the “reasoned decision”, he would have dismissed their objections.
No prejudice. The question of prejudice (or lack thereof) also runs through Coulson J’s reasons for rejecting the challenges to enforcement on the grounds of breaches of the rules of natural justice (an allegation that the adjudicator failed to consider a point raised by one of the parties and did not allow a rejoinder to be served).
Withholding notices and liquidated damages. I thought the question of whether the Construction Act 1996 (and the requirement to serve withholding notices) applied to the Employer’s deduction of liquidated damages was a novel one. Interestingly enough, I was recently served a withholding notice by an aggrieved Referring Party against my invoice after I had resigned – maybe that will reach the TCC in the near future!
Should the court take into account the merits of a case? I think that if you asked a member of the public this question, and whether it was a good thing, the answer would probably be yes. Ask a lawyer on the other hand and I suspect the answer will be somewhat more complex! Lawyers want certainty about when a “procedural” error is procedural, merits of the case notwithstanding.