Aveat Heating Ltd v Jerram Falkus Construction Ltd [2007] EWHC 131 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

The adjudication provisions of the GC/Works sub-contract are invalid because they are non-compliant with the HGCRA.  The offending clause in the GC/Works sub-contract provided that the adjudicator’s decision would be valid if issued after the time allowed.

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


This case dealt with an application for summary judgment to enforce an adjudicator’s decision.  Judge Havery QC held that the following term in the contract, which incorporated the GC/Works sub-contract conditions, was non-compliant with the HGCRA: “The adjudicator’s decision shall nevertheless be valid if issued after the time allowed…”.  For that reason, the contractual adjudication scheme was void and the statutory scheme applied instead. (See also Judge Havery QC’s recent decision in Epping Electrical Co Ltd v Briggs & Forrester (Plumbing Services) Ltd [2007] EWHC 4).

Counsel for Jerram Falkus put forward a number of arguments as to why the decision was unenforceable, all of which the judge gave short shrift to – the decision was enforceable. 

There was however one issue in relation to which the court found in favour of Jerram Falkus.  The adjudicator had ordered that the Jerram Falkus pay over £12,000 of costs and expenses pursuant to its powers under the GC/Works sub-contract.  Having decided that the adjudicator’s decision derived from the HGCRA rather than the GC/Works sub-contract, the court found that the costs and expenses award made by the adjudicator against Jerram Falkus was unenforceable.  This was because the statutory adjudication scheme does not provide adjudicators the power to award a party its costs and expenses.

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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