I was recently involved in a case that came before HHJ Seymour QC in the Queen’s Bench division of the High Court. Rather than acting as an adjudicator and having my decision challenged on enforcement, I was acting as a joint expert for the parties. It was unusual to be on the other side of the fence for a change.
The case involved three properties, one claimant, two defendants and a third party (or part 20 defendant in modern parlance). Issues in the case were less than straightforward:
- Was there one contract or three contracts (for a flat, a house and the third, a care home)?
- Who were the parties to the contract(s)?
- Who was the employer?
- What was the scope of works?
- What was the price for the works?
- Were the works varied?
- Were the works defective and incomplete?
- Did the employer terminate the contractor’s employment under the contract, or did it get it wrong, and end up in repudiatory breach of contract itself?
The court had to deal with these issues. I only had to value the works that were said to be defective or had been completed/were incomplete at the time of termination. I was quite grateful for that.
This case reminded me that adjudication is not always the best process to deal with a dispute. The court did not have to deal with issues that have significant consequences in adjudication, such as whether:
- Statutory adjudication under the Construction Act 1996 applied to the contract(s), or whether the residential occupier exception applied (was the employer an individual or a company?).
- All or part of the terms of the contract(s) were “in writing“.
If this dispute had been referred to adjudication, the adjudicator would have had to grapple with jurisdiction arguments based on these issues. If the issues weren’t raised at the outset, it would only be a matter of time before they were (everyone is familiar with challenges during enforcement proceedings). By taking the matter directly to court, the parties saved time and money. Even when the Construction Act changes and opens up adjudication to contracts that are not “in writing”, it is arguable that there will still be some disputes (such as this one) that will be better suited to resolution by the courts. I hope that doesn’t sound like a turkey voting for Christmas!