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

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In this case, the Court decided that, for the purposes of a conclusive evidence clause in the contract between the parties, adjudication proceedings were ‘commenced’ when the notice of adjudication was given, rather than when a referral notice was given to an adjudicator.  The Court also held that as the Notice of Adjudication in question gave substantive and effective notice of the dispute being raised, incorrect identification of the body nominating the adjudicator and identification of and service at an address not specified in the Contract, were not sufficient to invalidate the Notice. Nor was the Notice invalidated by the fact that an adjudicator was subsequently appointed by an incorrect nominating body and had to resign.

Technology and Construction Court, The Hon Mrs Justice Carr DBE


The University of Brighton (“the University”) engaged Dovehouse Interiors Ltd (“Dovehouse”) to carry out the fit out of University Centre in Hastings for a Contract Sum of £2, 553, 031.29. The contract, dated 26th March 2012 (“the Contract”), incorporated the terms of the JCT Intermediate Building Contract with Contractor’s Design 2005 Edition, Revision 2 (2009) as amended by a schedule of amendments. It provided for disputes to be referred to adjudication under the Scheme for Construction Contracts (England and Wales) Regulations1998 (“the Scheme”). Terms of the Contract relevant to this dispute included:

  • Clause 1.7, which provided for notices to be given in writing to the address stated in the contract particulars. For the University this was Mithras House, Brighton;
  • Clause 1.9.1, which provided that the Final Certificate “shall be conclusive evidence” of the matters stated in that clause, including extensions of time and adjustments to the Contract Sum;
  • Clause 1.9.2, which contained a saving provision stating that the Final Certificate would not be conclusive if “adjudication, arbitration or other proceedings are commenced…not later than 28 days after the Final Certificate has been issued”;
  • Clause 9.2, which specified that any adjudicator be appointed by the President or Vice-President of the Chartered Institute of Arbitrators (CIArb).

The parties fell into dispute over Dovehouse’s entitlement to extensions of time to the completion date and the proper valuation of variations to the works. They also disputed Dovehouse’s liability for the University’s costs to address incomplete and defective works and Dovehouse’s entitlement to recover loss and expense in respect of delay and disruption to the works.

The Contract Administrator issued her Final Certificate on 9th December 2013, certifying a gross valuation of the works in the sum of £2, 099, 629.23. Dovehouse disputed this sum, arguing that £3, 670, 692.19 should have been certified. The parties extended the period in clause 1.9.2 to 66 days (until 14 February 2014) to allow time to negotiate.

On 13 February 2014 Dovehouse served a Notice of Adjudication (‘the First Notice’) on the University at its Exion address in Brighton. The Notice was received by the University that day. The Notice sought a decision from the adjudicator that the Date for Completion be extended and that the Final Certificate be corrected to certify a gross sum of £3, 670, 692.19. The Notice gave the address of the University as the Exion address and wrongly identified the Royal Institution of Chartered Surveyors (RICS) as the adjudicator nominating body. Dovehouse then mistakenly requested that the RICS select an adjudicator. As a result the first adjudicator resigned on the basis he had no jurisdiction. On 24 February 2014, Dovehouse served a second notice of adjudication correcting their mistake.

The University brought court proceedings on 25 February 2014, seeking a declaration that the Final Certificate had become conclusive evidence of the matters stated in clause 1.9.1 of the Contract. The University also sought an injunction prohibiting Dovehouse from taking any further step in the adjudication until determination of that application. On 27 February 2014 the parties agreed to stay the adjudication proceedings pending the outcome of the declaration application.


The Court had to decide the following issues:

Whether adjudication proceedings had ‘commenced’ within the meaning of clause 1.9.2 of the Contract by 14 February 2014. The Court had to consider the University’s arguments that the First Notice was ineffective because:

  • An adjudication under the Scheme is not commenced until the referral is served on a properly appointed adjudicator;
  • It did not comply with the requirements of paragraph 1(3) of the Scheme in that it did not identify the contractually specified address for the giving of notices;
  • It was not served at the contractually required address;
  • No adjudication proceedings were in fact commenced as the First Notice identified the wrong nominating body, there was an invalid referral and the first adjudicator resigned
  • The defects in the First Notice and the first adjudicator’s resignation could not be cured

the decision

The first decision the Court had to make was whether adjudication proceedings were commenced upon the giving of notice, as Dovehouse contended (paragraph 1 of the Scheme), or when a referral notice was given to an adjudicator, as the University contended (paragraph 7 of the Scheme). The Court decided that, on a proper construction of the Contract, proceedings for the purposes of clause 1.9.2 were commenced on notice of adjudication for several reasons, the most significant of which being:

  • If proceedings are only commenced when a referral is made to an adjudicator, the referring party may be unfairly disadvantaged if there are delays to the appointment of an adjudicator through no fault of their own (the Court here relied on Tracy Bennett v FMK Construction LTD [2005] 1010 Con LR 92).
  • For the purpose of commencing arbitration proceedings as referred to in clause 1.9.2, only a notice to concur was required. It would be odd for there to be materially different procedural requirements for the commencement of adjudication proceedings on one hand and arbitration proceedings on the other, for the purposes of clause 1.9.2.
  • A notice of adjudication under the Scheme is a critical document which defines the scope of the matters to which the adjudication proceedings relate. It was particularly important in relation to the saving in clause 1.9.2, which limited the saving to those matters to which the adjudication proceedings related. Although paragraph 1 of the Scheme referred only to a notice of “intention to refer”, it was clear from paragraph 1 (3) that the notice had to go well beyond this. The fact that the First Notice expressly sought relief, including interest and costs, indicated the existence of actual, not just intended, proceedings.

The First Notice was not invalidated by the fact that it identified and was served at the University’s Exion address for the following reasons:

  • It set out the name of the University and an address that was used extensively under the Contract.
  • The First Notice failed to comply with the requirements of paragraph 1(3) of the Scheme but not every breach of a requirement of the Scheme is such as to render a notice invalid. Dovehouse’s omission in no way affected the fact that the First Notice achieved its purpose of informing the University of the dispute being raised.
  • The requirements of the Contract in relation to service of notices did not apply to notices to be served under the Scheme (and the Scheme does not specify a particular method or place of service). Even if the Contract requirements had applied to service of the First Notice, they were not mandatory requirements and did not prevent effective service at a different address. Further, even if there was a breach of clause 1.7.3 this would not invalidate the First Notice for the purpose of clause 1.9.2. Notice was substantively and effectively given to the University at the Exion address.

The Court decided that, as proceedings for the purpose of 1.9.2 were commenced by a notice of adjudication under the Scheme, the suggestion that proceedings were not commenced in this case because of incorrect identification of the nominating body fell away. Dovehouse was not obliged to identify the nominating body in the First Notice at all and as a result, incorrect identification of that body did not render the notice as a whole invalid.

The Court decided that the invalidity of the referral and the first adjudicator’s resignation did not negate the sufficiency of the First Notice for commencing proceedings. The Court held that the saving proviso in clause 1.9.2 was not triggered by reference to any step beyond the commencement of proceedings. All that was required to engage the saving proviso was the commencement of proceedings. Once triggered, on the facts of this case, the proviso remained in operation during the currency of any subsequent adjudication proceedings.

For the reasons stated above the Court dismissed the claim by the University.

This summary was provided by CMS Cameron McKenna LLP.

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