Williams (Mrs Sandra) t/a Sanclair Construction v Abdul Noor t/a India Kitchen [2007]

This summary was provided by CMS Cameron McKenna LLP.

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Whether an adjudication is brought by the wrong party or whether is it brought by the right party but in the wrong name is a question of fact.

His Honour Judge Hickinbottom – Queen’s Bench Division, Technology and Construction Court

Background

The parties entered into an agreement under which the claimant agreed to carry out building works at a take away restaurant to convert it into a seated dining restaurant.  The agreement included a provision allowing either party to refer disputes to adjudication and the adjudication provisions would be those set out in the Scheme for Construction Contracts.  The adjudicator would be appointed by the President of the Chartered Institute of Arbitrators.  However, the adjudicator was not so appointed, but was appointed by a written agreement entered into by both parties and the adjudicator.  That agreement was signed by Mr Williams on behalf of Mrs Williams trading as Sinclair Construction, the claimant.  The adjudicator delivered his decision in favour of the claimant and the claimant applied to the court to enforce it when the defendant failed to comply with the decision.

Issues

At the hearing the defendant sought to defend against the applications on the grounds that (a) the adjudication was invalid because Mr Williams was party to the adjudication, not Mrs Williams (the Sinclair name being one used by the husband not the wife); and (b) the notice of adjudication was invalid has it had been made in the name of Mr Williams and not the contracting party, Mrs Williams.

The key question was therefore whether the adjudication was brought by the wrong party or by the right party but in the wrong name.

Decision

His Honour Judge Hickinbottom had to decide whether the party was “Mrs Williams trading as Sinclair Construction (the contracting party in the underlying contract), or… Mr Williams on his own personal account”.  The court held that, on the facts, Mrs Williams was indeed a party to both the contract and the adjudication and that the fact that adjudication documents (from both sides) had referred to Mr Williams or Sinclair Construction being party to the adjudication and not Mrs Williams was simply a mistake and applying a number of earlier cases, stated that where the wrong name is used, the approach should be to consider the “terms and the surrounding circumstances know to the parties” in which the wrong name is used. The court therefore enforced the adjudicator’s decision.

HHJ Hickinbottom added the defendant could “at no time have believed that a party other than the named party to the underlying [contract] had commenced adjudication proceedings against him”.

This summary was provided by CMS Cameron McKenna LLP.

For more information visit http://www.cms-cmck.com/Construction/Construction-Disputes

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