Connex South Eastern Ltd v M J Building Services Group Plc [2005] EWCA Civ 193

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

An adjudication may be brought after a construction contract has been terminated.  The fact that many months, or perhaps years, have elapsed since the contract was terminated does not prevent an adjudication from being commenced.  Where an adjudication is brought after an elapse of time, the adjudicator will not have jurisdiction to stay or strike out the adjudication proceedings should it be alleged that they were brought as an "abuse of process".

Court of Appeal.  Ward, Dyson and Carnwath LJJ

1 March 2005

This case concerned a contractor's claim for damages, including loss of profit, flowing from the termination of a contract whereunder the contractor was to supply and install CCTV cameras at a number of train stations.  The details of the case are mentioned in another Adjudication Watch note regarding the decision of the trial judge, Judge Havery QC, 25 June 2004.  The decision of the trial judge was appealed to the Court of Appeal.  Leaving aside the question of whether a binding compromise had been reached between the parties (the Court found that it had not) there was one issue before the Court of Appeal concerning the nature of adjudication under the Housing Grants, Construction and Regeneration Act 1996 (the "Act").  The issue arose in this way:

  • The contract for the installation of CCTV cameras was terminated in around November 2002.  The termination occurred when the contractor accepted a wrongful repudiation of the contract by the owners.  It was not disputed before the Court of Appeal that the contract was one to which the Act applied.
  • In February 2004, i.e. some 15 months after the contract was terminated, the contractor purported to commence an adjudication against the owners, pursuant to the Act.
  • It was claimed that the contractor was not entitled to commence an adjudication at such a late juncture, because the passage of time meant that it was no longer possible to have a "quick, cheap and temporary decision", as contemplated by the Act.  It was said that what the contractor had attempted to do, in bringing the adjudication, was an "abuse of process".

This argument failed before the Court of Appeal, just as it did before Judge Havery QC.  The key aspects of the Court of Appeal's reasoning, in rejecting this argument, were as follows:

  • Section 108(1) of the Act confers upon a party to a regulated construction contract the right to refer a dispute under the contract to adjudication.  Section 108(2) provides that such a contract shall "enable a party to give notice at any time of his intention to refer a dispute to adjudication" (emphasis supplied).
  • The words "at any time" in section 108(2) are to be given a literal interpretation, i.e. a dispute may be referred to adjudication during the currency of a construction contract, or after its termination following a repudiation (subject to any countervailing waiver or estoppel).  There is nothing in section 108(2) to limit the time at which an adjudication may be instituted.  A dispute may even be referred to adjudication if the underlying claim the subject of the referral is time barred by statute, although the responding party may be permitted to invoke the limitation statute as a basis for defending the claim in the adjudication.
  • The Court went on to emphasise that once a party is seised of a right to refer a dispute to adjudication, the capacity of an adjudicator under the Act and related Scheme to strike out or stay an adjudication, on the basis that the adjudication was brought as an "abuse of process" is non-existent.

In the result, the adjudication was allowed to proceed, notwithstanding the passage of time between the termination of the contract, and the commencement of the adjudication. 

This summary was provided by CMS Cameron McKenna LLP.

For more information visit

Click here to read full-screen | Click here to print the case