Residential Occupier Exception to the Construction Act

Westfields Construction –v- Lewis [2013] CILL, TCC

Mr Lewis had previously lived in his house at Cavendish Avenue, London, NW8 but purchased a flat in Knightsbridge and used this as his home from February 2012.  In September 2011 he had entered into negotiations with Westfields for the property to be refurbished.  During which time he mentioned to Westfields that he intended to let the property once the works were finished.  Lewis failed to make a payment of £17,000 on application by Westfields who commenced an adjudication.

During the adjudication Mr Lewis objected to the adjudicator’s jurisdiction.  This was upon the basis that Mr Lewis intended to occupy the property as a residential occupier once the works were finished.  Therefore the adjudicator had no jurisdiction because by Section 106 of the HGCRA, Statutory Adjudication Provisions do not apply to construction contracts with a residential occupier (occupying or intending to occupy the residence).  The adjudicator dismissed this objection and decided that he had jurisdiction.  Westfields refused to pay.

HELD:

The Judge decided to hold a trial with cross-examination on the issue whether or not Mr Lewis was entitled to the residential occupier exception to adjudication.  Cross-examination established that Mr Lewis was an unreliable witness, and the Court ruled that on an objective basis, Mr Lewis intended to let the property out once the refurbishing works had been completed.  The exception therefore did not apply.

Comment

The Judge commented that it was unfortunate that Section 106 had not been repealed when the Act was reformed in 2009.  A 28-day resolution for small building disputes was obviously more useful than dragging them through cross-examination in the Courts.  We respectfully disagree.  A genuine domestic client of the building process would be much better off with one single County Court action – a mediation would be better still.

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