Neutral Citation Number: [2013] EWHC 376 (TCC)

Case No: HT-12-402

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

TECHNOLOGY AND CONSTRUCTION COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27 February 2013

Before :

THE HONOURABLE MR. JUSTICE COULSON

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Between:

	WESTFIELDS CONSTRUCTION LIMITED	Claimant
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	CLIVE LEWIS	Defendant

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Ms Catherine Piercy (instructed by SGH Martineau LLP ) for the Claimant

Mr Samuel Townend (instructed by CKFT Solicitors ) for the Defendant

Hearing date: 20 February 2013

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Approved

The Hon Mr Justice Coulson:

1. INTRODUCTION

This is an application by the claimant to enforce the decision of the adjudicator dated 2 October 2012. Although the sum claimed is just £17,393.91 plus interest, the application has been hotly contested. There are seven witness statements, including four from the defendant alone. In addition, and unique in my experience, the parties were permitted (pursuant to an order of Akenhead J dated 21 December 2012), to call oral evidence. There was extensive cross examination; indeed the hearing took so long that this judgment had to be reserved. Such a lengthy enforcement process might not be thought to be in keeping with the principles of fast and uncomplicated justice central to construction adjudication.
Another unusual feature of the dispute was the nature of the issue that divided the parties. It was unconnected to the merits of the claim. Instead, the defendant employer asserted that the adjudicator did not have the jurisdiction to decide the dispute between himself and the contractor claimants because the construction contract was in respect of a property at 3, Cavendish Avenue, London NW8 9JD (“the property”), a house which, at the time of the contract, he said he occupied as his residence and intended to occupy in the future. The defendant therefore relied on the exception at section 106 of the Housing Grants (Construction and Regeneration) Act 1996 (“the 1996 Act”). The claimants contended that the defendant did not occupy the property at the time the contract was made and/or that his intention was always that the property would be refurbished so that it could be let for commercial purposes. Thus the claimants maintained that the residential occupier exception did not apply.
As noted in Section 2 below, cases concerned with the s.106 exception are rare. This is because most construction contracts - even those relating to works carried out for residential occupiers - are let on standard forms, which contain bespoke adjudication provisions. This is therefore one of those rare cases where the construction contract was in writing, but did not contain any express agreement to adjudicate. Ordinarily in such cases, of course, the adjudication provisions in the 1996 Act would be incorporated, and the burden was therefore on the defendant to demonstrate that the exception provided by s.106 of the 1996 Act prevented their incorporation in this case. If the defendant was right, the adjudicator would have no jurisdiction; if wrong, the defendant would have no defence to this claim.
I set out the relevant law in Section 2 below, and in Section 3, I provide an outline chronology. Then at Section 4 I go on to make findings of fact as to when the contract was made and whether or not the defendant occupied the property and/or intended to occupy the property as his residence. My conclusions are set out in Section 5 below.

2. THE RELEVANT LAW

Section 106 of the 1996 Act provides as follows:

“ 106 Provisions not applicable to contract with residential occupier.

(1) This Part does not apply—

(a) to a construction contract with a residential occupier…

(2) A construction contract with a residential occupier means a construction contract which principally relates to operations on a dwelling which one of the parties to the contract occupies, or intends to occupy, as his residence.

In this subsection ‘ dwelling ’ means a dwelling-house or a flat; and for this purpose—

‘ dwelling-house ’ does not include a building containing a flat…”

Ms Piercy was right to submit that there is no reported case in which a defendant, seeking to resist the enforcement of an adjudicator’s decision, has successfully relied on the s.106 exception. There are only three cases in any event. In chronological order, they are:

Samuel Thomas Construction Limited v Anon (unreported) 28 January 2000;

The contract in question concerned the refurbishment of one barn so that the employers could live in it, and another barn (and other buildings) which were being refurbished for sale. The circuit judge upheld the adjudicator’s decision that, where one dwelling was to be occupied and the other was not, the contract could not be said “principally to relate to operations on a dwelling which one of the parties to the contract intended to occupy”.

Edenbooth Limited v Cre8 Developments Limited [2008] EWHC 570 (TCC); [2008] CILL 2592.

In that case the defendant company’s attempt to rely on s.106 failed. I said it was difficult to imagine how a company could ever be a residential occupier, the word ‘residential’ conveying a requirement for a real person to be living in the house or flat in question. Furthermore, the defendant company was engaged in property development, which was its stated purpose.

Shaw v Massey Foundation and Pilings Limited [2009] EWHC 493 (TCC).

In this case the works were being carried out to a lodge building that formed part of a large country estate. The Shaws did not occupy the lodge and did not intend to live there, so the exception was found not to apply. As to the issue of intention to occupy, I concluded, at paragraph 26 of the judgment, that what mattered was the employer’s intention at the time of the formation of the contract. In the present case, neither side sought to dissuade me from that view.

There is a dispute here, which did not arise in any of the three cases noted above, as to whether, at the time that the contract was made, it could be said that the defendant occupied the property as his residence. I deal with that issue in Section 4 below. But Ms Piercy properly raised an antecedent question: at what point should the court assess whether or not the defendant/employer occupies the property as his residence? Is it the date of the formation of the contract? Or is it, as she suggested, important to regard occupation as a continuing operation, and not to overemphasise the snapshot position at the date of the contract?
The issue has potentially significant consequences in the present case. In the course of his clear submissions, Mr Townend argued that, if he could demonstrate the defendant’s occupation of the property as his residence on the day that the contract was made, the defendant could rely on the s.106 exception, regardless of what he said was the separate (disjunctive) category of those who intended to occupy. But Mr Townend properly accepted that this argument would lead to the anomalous result that a defendant/employer who occupied at the date of the contract could rely on the exception, even if the proposed works were expressly to permit resale, development or refurbishment for rental purposes, and the employer would never again live - or intend to live - at the property.
Mr Townend also accepted that an employer in the position of the defendant could not occupy as a resident more than one property at the same time. That concession seems to me to be rightly made. In my view, it highlights the limited nature of the category of employers caught by the exception.
Section 106 was intended to protect ordinary householders, not otherwise concerned with property or construction work, and without the resources of even relatively small contractors, from what was, in 1996, a new and untried system of dispute resolution. It was felt that what might be the swift and occasionally arbitrary process of construction adjudication should not apply to a domestic householder. In this way, s.106 excluded adjudication in respect of construction works carried out for those who occupied and would continue to occupy as their home the property that was the subject of the works (even if they had to move out when those works were carried out), or who had bought the property and intended to live there when the construction works were completed.
Whilst I remain of the view that the date of the formation of the contract is particularly important in any consideration of any alleged ‘intention to occupy’, I consider that Ms Piercy was right to say that ‘occupation’ is an ongoing process and cannot be tested by reference to a single snapshot in time. “Occupies” must carry with it some reflection of the future: it indicates that the employer occupies and will remain at (or intends to return to) the property. Thus the evidence about the position at the date that the contract was made has to be considered in the context of all of the evidence of occupation and intention, both before and after the agreement of the contract. Above all, s.106 needs to be approached with commonsense: it ought to be plain, on a brief consideration of the facts, whether the employer is or is not a residential occupier within the terms of the exception.

3. OUTLINE CHRONOLOGY

The parties entered into a construction contract in respect of the refurbishment of the property in February 2012. The relevant contractual document was the claimant’s quotation of 14 February 2012. There is a dispute as to when the contract was made which I deal with under Section 4.2 below. There is also a dispute to when the defendant moved out of the property to his new home at Flat 7.2, Lancelot Place, Knightsbridge, SW7 (“the Knightsbridge flat”). The defendant says that he moved out on 24 February; the claimants say it was earlier than that. I deal with that dispute under Section 4.5 below.
A dispute arose in respect of the defendant’s non-payment of valuation 6. That was referred to adjudication on 7 September 2012. The defendant objected to the jurisdiction of the adjudicator on the ground that he intended to occupy the property once the works were completed and therefore fell within the s.106 exception. He did not suggest that he occupied the property at the time when the contract was agreed or that this was in any way relevant. The adjudicator concluded that the defendant was not a residential occupier and went on to decide that the defendant should pay the claimant the sum of £17,393.91 plus interest within seven days.
No such payment has been made. In answer to the enforcement proceedings, the defendant again disputed the adjudicator’s jurisdiction. The defendant has not moved back into the property and he and his wife continue to occupy the Knightsbridge flat as their residence.

4. FINDINGS OF FACT

General
There was a bundle of contemporaneous documents, although the cross examination on both sides demonstrated that it was in some ways incomplete. There were two witness statements from Mr Varley, the director of the claimants, and one witness statement from Mr Thomasz Palczak, who worked for one of the claimant’s sub-contractors, Blair, as a painter and decorator. I found both Mr Varley and Palczak credible witnesses who properly accepted the limits of their evidence. I accept Ms Piercy’s submission that Mr Palczak was an entirely independent witness with no commercial motivation or interest in the outcome of the hearing.
I regret that I did not form the same positive impression of the defendant. The fact that he produced no less than four written statements is an eloquent demonstration of the evasive, almost reluctant way in which he has endeavoured to give his side of the story. That impression was reinforced by his oral evidence: he was argumentative and condescending; he refused to answer the questions put to him; and he repeatedly gave evidence that was at odds with his own sworn statements. He was alarmingly cavalier with the truth, at one point accepting that an email he had sent suggesting that the remaining furniture was going to be moved out of the property in March was a deliberate lie, apparently because he was worried that the claimants would find out that he was going away for a few days. He was, on any view, a thoroughly unimpressive witness.
For these reasons, where there was a straight clash of evidence between Mr Varley or Mr Palczak, on the one hand, and the defendant on the other, I preferred their evidence to that of the defendant.
When Was The Contract Made?
Mr Varley and the defendant first met to discuss the works in late September 2011. It was on that occasion that the defendant talked about his sons leaving home and letting out the property once the works had been completed, a discussion to which I return under Section 4.3 below. The claimants provided their first written quotation on 21 October 2011. The defendant raised a host of points on that quotation and there were discussions about various elements of the price. This led to a revised quotation dated 22 November 2011. That too was then the subject of further discussion and negotiation. A third quotation was provided on 14 February 2012. The defendant replied to the quotation later that same day to say “That seems OK - I’d like a word with you so please call…”
The defendant confirmed that there was a call between himself and Mr Taylor of the claimants in which various matters relating to the works were discussed. This led directly to an agreement that the outstanding matters would be the subject of a discussion on site on 21 February. That site meeting and discussion took place between Mr Varley and the defendant, and the matters agreed that day were then the subject of a confirmatory email from Mr Varley to the defendant sent later on 21 February.
It is clear from that email that a number of important matters were resolved at the meeting on 21 February. In particular, the scope of work in the bathroom, which were the subject of a provisional sum in the quotation, was discussed in detail and agreement reached. There were other matters outstanding that were also agreed relating to the scope of the proposed works, including security and access; the removal of the marble fireplace; works on the first floor landing, and the ground floor WC; the second floor access panels; and an ongoing debate about the timber floor which related both to scope of works/specification and price.
On the face of the documents, therefore, it seems to me that, although the quotation of 14 February 2012 formed the basis of the contract, it could not be said that the contract was agreed on that day: indeed, the qualified nature of the defendant’s email makes that plain. The defendant did not accept the quotation of 14 February as it stood, but instead instigated both the telephone call and the subsequent site meeting on 21 February. The email of 21 February demonstrated the wide-ranging nature of the agreements - both as to workscope and price - subsequently reached at that meeting. Accordingly, it seems to me plain that the claimants are right to say that the contract was agreed on 21 February, as a result of that meeting.
I accept that, as Mr Townend demonstrated, the claimants appeared to formalise an arrangement with their painting sub-contractor, Blair, on 16 February. He made the fair point that the claimants would not have done that unless they thought that they had a binding contract with the defendant at that date. But that submission overlooks two things: first, that the position with Blair was complicated because they were already on site, carrying out work directly for the defendant; and secondly, that the decoration works were not the subject of the subsequent discussion on 21 February, so that there was force in Mr Varley’s evidence that he felt secure enough, at least in respect of the decoration elements of the proposed contract with the defendant, to place the order with Blair. At all events that email does not alter my view that the contract between the claimants and the defendant was made on 21 February 2012.
Intention To Occupy As A Residence
I deal with this aspect of the s.106 exception first because the evidence relating to the defendant’s intention not to occupy the property as his residence after the works was clear and consistent from a period before the contract was let, right the way through to the time when the relationship between the parties began to break down. It seems to me that this clarity and consistency has to inform my whole approach to the operation of s.106 in this case.
I find on the evidence that, at the time that the contract was made on 21 February 2012, the defendant intended to let out the property when the works were completed. What is more, I find that that intention was made known to the claimants both before the contract was entered into, and during the carrying out of the works.

Pre-Contract

It is common ground that, at the very first meeting between Mr Varley and the defendant, the defendant said that, for family reasons, he intended to rent out the property once the works had been completed. The dispute between them was limited to the emphasis placed on this statement. The defendant said that he mentioned it simply as a possibility, whilst Mr Varley was clear that it was expressed as the defendant’s unequivocal intention. In view of my general observations at paragraphs 15-17 above, I prefer Mr Varley’s evidence on that issue.
Moreover, the defendant’s intention to let the property once the works had been completed was confirmed in unqualified terms by an email which was forwarded to the claimants on 25 January 2012. The email had originally been sent by the defendant to estate agents, Aston Chase. The email was in these terms:

“Just to let you know, no email from Danielle.

We are not away till weekend, so there is still time to work out a deal, if she wants to, but I really need her proposal tomorrow, in order to consider it and negotiate and get her signed up, preferably by Thursday (as Friday will be hectic).

I think you said 3 year lease is max poss, so if she wants 4 years will that be a problem? We could do 2 years plus option 2 more.”

Danielle was an American woman who was interested in renting the property. It appears that the defendant was dealing with her direct and that the discussions had reached a point whereby detailed matters - including the length of the lease - were being discussed. It seems to me that the email (which may well have been sent to the claimants by accident) confirms what the defendant had said to Mr Varley in late September: that once the works had been completed, the property would be let out.
Further confirmation of this intention was provided by the purchase by the defendant of the Knightsbridge flat. The evidence was that the claimants knew that the defendant was buying another property and was going to move prior to the works starting: indeed, that was one reason why the start date of the contract had been put off. The claimants did not know, and were only to discover much later, that this new property – which the defendant misleadingly called “a small investment flat” in his first statement – was the Knightsbridge flat which cost £7.6million. It is the home that the defendant and his wife have lived in for the last year.

At the Time of the Contract

Accordingly, at the time of the contract, the claimants had been told by the defendant that he intended to let out the property once the works had been carried out and they had seen an email to estate agents dealing with detailed proposals for a possible lease of the property. Moreover, they knew that the defendant had bought a new property into which he was going to move when the works were carried out. Accordingly, any fair assessment of the defendant’s objective intent can only be that he intended to let the property when the works were completed.

Post-Contract

The evidence of events post-contract was entirely consistent with these findings. Two separate strands of evidence demonstrate the defendant’s continuing intention to let the property once the works had been completed.
First, there were the prospective tenants who were shown round the property during the construction works. Mr Varley’s evidence was that, on at least five different occasions, the works were suspended so that prospective tenants could view the property. Although the defendant’s witness statements sought to minimise that evidence, he nowhere directly disputed it. Indeed it is borne out by a subsequent email from Ashton Chase, the estate agents, which refers to showing “a couple of possible renters” round the property.
Secondly, there are the emails which the defendant himself sent to the claimant in which he expressly refers to his intention to let out the property. These include the emails of 28 June 2012 (“it is delaying the letting of the house and I am most concerned that we are now going to run into the summer period without a tenant being signed up”); 20 July (“I am anxious for you to complete outstanding works in order that we can show the house to prospective tenants…”); 22 July (“as you know, the purpose of refurbishing the house is for it to be let and time is therefore of the essence.”); 27 July (“we are aiming to let the house, so delays are expensive and I really do not want to have to make any claim against Westfields”); and 6 August (“you are well aware that the renovation of the house is order that it can be let. The time it is taking you to progress works, is completely unacceptable, effectively rent is being lost.”)
The defendant’s unpromising evidence about his own emails was that they were blatantly untrue and were simply designed to put pressure on the claimants to complete the works. It is of course troubling that the defendant was again so casual about telling the truth in documents of this kind and, for the reasons previously noted, I do not accept his evidence. But there are two further reasons why that explanation of these emails cannot be correct.
First, the defendant repeatedly said to Mr Varley in these exchanges that he, that is to say Mr Varley, was ‘well aware’ that ‘the purpose’ of the refurbishment works was ‘in order to let’ the property. Such statements were not necessary in order to put commercial pressure on the claimants to finish the works; the defendant could have simply said that he was going to rent out the property, and that the delay was affecting his ability so to do. He had no reason to assert in addition that Mr Varley already knew about this intention, unless of course that was true.
Secondly, if the statement that Mr Varley already knew about this intention was untrue, then Mr Varley would have responded to say so. Of course Mr Varley did not respond in any such terms because, far from being untrue, the statements as to his prior knowledge were correct: Mr Varley was aware that that was the intention behind the refurbishment works.
Accordingly, I conclude that the events post-contract, and in particular these emails, confirm my earlier findings: throughout the relevant period, the defendant’s intention was to let the property. I find that he has not yet let it only because, as he himself said, the present state of the property, and, in particular, the non-completion of the works, has prevented it.

Summary and Effect

My findings of fact in relation to the defendant’s intention to rent out the property, objectively ascertained, means that he cannot show that he intended to occupy the property as his residence. That element of the s.106 exception has not been made out.

4.4 “Occupies… As His Residence”

In my view, the finding that I have made as to intention to occupy is fatal to the entirety of the defendant’s case on s.106. As a matter of common sense, the residential occupier exception did not apply to the defendant because he was undertaking these works so he could rent the property out on a commercial basis. He was not intending to occupy the property as a residential occupier, so s.106 was simply not engaged. On that basis, the challenge to the adjudicator’s jurisdiction fails, and the claimants are entitled to the sum sought by way of summary judgment.
To put this point another way, I conclude that, because occupation is not to be tested by a single snapshot in time (paragraph 11 above), but instead requires ongoing occupation (including, if appropriate, an intention to occupy in the future), the defendant has not demonstrated that he occupied the property as his residence for the purposes of s.106. The defendant did not occupy the property as his residence after the contract was made on 21 February, neither did he intend to occupy the property as his residence thereafter. In my view, s.106 does not apply.
For the reasons that I have given in paragraphs 7 - 11 above, it would be a nonsense if someone who was moving out of a house in order to rent it out or even sell it (another option which the defendant accepts that he was considering), could still rely on the residential occupier exception merely because, at the precise time that the contract was agreed, he lived in the property in question. In my view, such a person would fail both the intention and the occupation tests. However, in case I am wrong in my approach to the occupation element of s.106, and it does turn solely on a snapshot at the time of the contract, I turn finally to address the question of actual occupation on 21 February 2012.
Was The Property Occupied As A Residence On 21 February 2012?

The Evolving Nature of the Defendant’s Case

It is worth noting at the outset the evolving nature of the defendant’s case on this point. In his first witness statement, the defendant made no mention of the occupation of the property at the time of the agreement of the contract. Instead, paragraph 7 of that first statement contains an extremely elliptical description of his past and current living arrangements. It appears that that statement was designed only to support the case (which I have rejected) as to his intention to occupy after the works had been completed, which had been how he had put his objection to the adjudicator’s jurisdiction originally. However, shortly before the original enforcement hearing, on 19 December, the defendant put in a further statement which said, in terse terms, that:

“…my wife and I went to the US at the end of 2011. Upon our return to the UK on about 15 January 2012 we returned home and lived at Cavendish Avenue. We only moved in to our current accommodation on 24 February 2012.”

No other details were provided. There was no evidence from either his wife or his son.

The third witness statement gave no further details in relation to this aspect of the dispute but the fourth witness statement, served only on 13 February 2013, purported to describe a daily routine in mid-February and which alleged that the defendant was sleeping at the property prior to 24 February 2012.

The Claimants’ Case

The claimants’ case was always that the defendant had moved out into the Knightsbridge flat before the contract was made and the works started in earnest on 21 February 2012. The evidence was two-fold. First, there was the evidence of Mr Palczak who was working at the property from 8 February and who, first thing in the morning, was obliged to access the property by climbing up the scaffolding and going in through a window on the top floor. Mr Palczek said that, as far as he was aware, nobody was living at the property from 8 February 2012 and that, even if further furniture was moved out on 24 February 2012, that made no difference to the situation at the property, which was the same both before and after that date. The defendant, he said, was not there: “he came in the car from somewhere else.”
He was cross-examined to the effect that he would not have seen the rest of the house, only the top floor, but he refuted that, making it plain that he looked in through the windows climbing up the scaffolding, and also ventured through the plastic sheeting on the top floor to the floors below. He saw “things packed up in the middle of each room”. His attitude was one of genuine surprise at the suggestion that the defendant and his wife (and younger son) were living in the house any time after 8 February, and he denied it.
Secondly, there was what Mr Varley said in his second witness statement:

“On 21 February 2012, the painter and I arrived at the property just after 7:30am. There was no one in the property. Shortly after 8:00am, Mr Lewis arrived by car from the south of Cavendish Avenue, which would be consistent with him having driven from the Knightsbridge area i.e. his new address which I now know to be Lancelot Place. Although Mr Lewis had indicated that he was moving out on 24 February 2012, as this date had changed previously, I just assumed that he made other arrangements and had already moved out to his new property in readiness for the works to begin.”

In his oral evidence, Mr Varley maintained that there was no one at the property first thing that morning (or subsequently). He said in terms that he waited for the defendant to arrive every morning so that he could be let in; “he was living somewhere else, somewhere locally. I never knew where.”
The defendant had not dealt with Mr Varley’s evidence about the 21 February meeting in any of his statements. In cross examination, he said he could not remember that meeting, which meant that he could not challenge what Mr Varley said about it (although that did not stop the defendant speculating – for the first time - about the possibility that he had taken his son to school that day).
Accordingly, given the credibility that I attach to the evidence of Mr Varley and Mr Palczek, and given the fact that the defendant could not remember the meeting on 21 February and therefore could not credibly challenge Mr Varley’s version of events, I find on the oral evidence and the witness statements that the defendant was not occupying the property as his residence on 21 February. The remaining question is whether the documents make any difference to that view.

The Documents at the time of the Hearing

There are two strands of documents on which Mr Townend relied in support of his submission that the defendant did not move out of the property until 24 February. They were the emails in relation to the removal company, Robinsons, and the emails in which Mr Taylor, of the claimants, and Blair discussed the date on which the defendant might move out.
Taking that second category first, it seems to me that those were not probative of anything because the date on which the defendant might move out of the property was information that came solely from the defendant. The representatives of the claimants and Blair had no separate information relating to that topic.
As to the removal documents, it is clear that they changed on a number of occasions. Furthermore, it was never clear what furniture was moved and when. Although I accept that there was some furniture removal on 24 February, it is not at all clear what was moved on that occasion (because the scope of the removals was so reduced from the first to the second Robinson quotation). It is also clear that that was not the first removal. The document from the concierge at the Knightsbridge flat makes plain that 24 February was the “ final day of moving in” (emphasis added). Accordingly, the first day of moving in would have been before that and, although it is not at all clear precisely when that was, I find that it was on or before 8 February.
The document from the concierge supports this analysis in another way, because it refers to ‘deliveries’ being made to the Knightsbridge flat throughout February. Although the defendant sought to suggest that that was deliveries that he himself was making, concierges do not routinely note visits from homeowners as “deliveries”. It is clear that deliveries were being made from a variety of sources, including furniture either from stores or from the property. Indeed, it is accepted by the defendant that some furniture was moved into the Knightsbridge flat before 24 February.
Accordingly, the contemporaneous documents to which reference was made at the hearing do not alter my view that, on the balance of probabilities, the defendant has not made good his alternative (and rather late) case that he occupied the property as a residence on 21 February 2012.

(d) Subsequent Documents

Unhappily, despite the fact that the defendant had put in four witness statements and caused at least one adjournment of the enforcement hearing by his late change of case, five days after the hearing on 20 February, the defendant’s solicitors provided more documents concerned with removals, purporting to corroborate the 24 February date. It was said that these documents had come to light “following reconfiguration of [the defendant’s] hard-drive last week”. In other words, it was said to be a complete coincidence that these documents were found after the hearing rather than before. I regret that I find this stated reason highly unlikely; it is much more likely that the defendant’s oral evidence about the removals was so obviously thin (for the reasons I have already given), that it was thought that some further documents might help his case.
These newly-disclosed exchanges with Robinsons are directly contrary to the oral evidence given by the defendant in a number of respects. In addition, a possible moving date of 23 February is introduced (for the first time). I accept the criticisms made of these late documents in the claimants’ solicitors’ letter of 26 February and agree that, on one view, the most they show (in the absence of cross-examination) is that Robinsons were moving the defendant’s furniture out of the property in tranches.
In the round, therefore, these late documents do not lead me to modify the conclusion that, whilst some furniture - perhaps even quite alot - was moved on 24 February, the defendant has not shown on the balance of probabilities that he and his family were occupying the property as their residence on 21 February.

(e) Summary

For the reasons stated, I find that, even if the ‘snapshot’ test is the right approach to ascertaining occupation (which I do not accept, for the reasons given) the defendant has not made out, on the balance of probabilities, that he was occupying the property as his residence at the time that the contract was made. That is the final reason why I consider that the s.106 exception has not been made out in this case.

5. CONCLUSIONS

In an already overlong judgment, I have endeavoured to put to one side what I consider to be extraneous matters. I have therefore ignored the claimants’ criticisms of the defendant’s conduct in respect of a sum ordered to be paid to the claimants by a different adjudicator under another contract, this time with a company, now in administration, of which the defendant was a director. I have also not had regard to the defendant’s evidence about the burglars who attacked his wife at the property in 2010, concluding that again such background was of no relevance to the issues before me.
For the reasons set out in Section 4 above, I find that the defendant’s intention, objectively ascertained, was to let out the property once the refurbishment works had been completed and that at all times, he acted in accordance with that intention. There was no ongoing residential occupation. In such circumstances, it seems to me that the defendant was not a residential occupier for the purposes of s.106. To the extent that the specific question of occupation on 21 February 2012 is relevant, I conclude that, on the balance of probabilities, the defendant has not demonstrated that he was occupying the property as his residence at that date.
For these reasons, I have concluded that the s.106 exception does not apply to the defendant. Since that was the only basis on which he challenged the adjudicator’s decision, it means that the defendant is liable to the claimant’s in the sum of £17,393.91 plus interest. Questions of costs will have to dealt with separately.

I should add this. Statutory exceptions, such as that provided by s.106, can often give rise to the sort of arid analysis set out above. That is even more regrettable when, as here, the exception itself may now be difficult to justify. Adjudication in construction contracts is generally thought to have worked well, and it has certainly reduced costs. Is it not time for s.106, and the other exceptions to statutory adjudication, to be done away with, so that all parties to a construction contract can enjoy the benefits of adjudication? I would venture to suggest that that would be a more commercially sensible outcome than that which has been achieved, for both parties, in these enforcement proceedings.