Commencement of adjudication – Conclusive evidence clause

Brighton University v Dovehouse Interiors [2014] EWHC 940 (TCC)

Facts

Brighton University appointed Dovehouse Interiors to fit out a new University Centre at Hastings on JCT IFC 2005/09.  The contract provided that the Final Certificate would be conclusive evidence that the Contractor had been paid everything it was entitled to unless adjudication or other proceedings were commenced not later than 28 days after the Final Certificate had been issued.

The parties agreed to extend this to 66 days.

A Final Certificate was issued on 9 December 2013 and so the final date for commencement of any proceedings was 14 February 2014.  On 13 February 2014 Dovehouse served a notice of adjudication, but got the address wrong, and wrongly approached the RICS to appoint.  The University objected because the contract provided for the Institute of Arbitrators to appoint and so the RICS’ nominee withdrew and a second adjudicator was appointed.  A new notice of adjudication was received from Dovehouse on 24 February 2014.

The dispute referred to adjudication was the amount owing to the Contractor, and the University applied immediately for an injunction to stop the adjudication going ahead, or for a declaration that the proceedings were invalid (which would make the Final Certificate binding).

TCC Held

1. The University’s application was refused.
2. Service on the wrong address did not matter, the University had received the document.
3. The notice on 13 February 2014 was a valid notice of adjudication indicating the nature of the dispute despite wrongly referring to the RICS and despite being superseded by a second notice on 24 February 2014.
4. The notice on 13 February 2014 was sufficient to “commence proceedings” for the purposes of preventing the Final Certificate from becoming conclusive evidence of its contents.

Comment

This is another in a long of cases in which defendants to adjudication have tried to use technicalities to defeat the adjudication process.  The TCC remains committed as a matter of very strong policy to robust and supportive approach to adjudication as a means of dispute resolution.

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