Epping Electrical Company Ltd v Briggs & Forrester (Plumbing Services) Ltd [2007] EWHC 4 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

Where a contractual adjudication procedure is non-compliant with the HGCRA, the entire contractual procedure will be deemed non-compliant and the statutory adjudication scheme will apply instead. The CIC adjudication procedure was held to be non-compliant with the HGCRA and therefore invalid.

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


A dispute arising between the parties was referred to adjudication, conducted in accordance with the Construction Industry Council (“CIC”) procedure current at the time of the appointment.  The 28-day period in which the adjudicator was required to reach a decision expired on 1 November.  The deadline was extended to 14 November with the consent of the referring party.  The adjudicator made a further request from both parties of an extension to 21 November, which was agreed.  Briggs however made its consent conditional on the decision being issued by 21 November. 

The adjudicator completed his decision on 21 November, but only sent it to the parties on 23 November.  The question before Judge Havery QC was whether the decision was out of time and in consequence beyond the jurisdiction of the adjudicator.


The court had to decide whether the time for reaching the decision had effectively been extended to 21 November.  The court followed the appellate decision in the Scottish case of Ritchie Brothers (PWC) Ltd v David Philp (Commercials) Ltd [2005] BLR 384, where it was held that the time limits under the HGCRA were mandatory, not directory.  The time limits in the contract, which reflected the statutory provisions, were therefore also mandatory. 

The contract (and the HGCRA) provided that the 28-day period could only be extended by consent of both parties.  Briggs’ consent for the extension of time to 21 November was conditional upon the decision being issued by that date.  In this case, although the adjudicator had reached his decision by 21 November, he did not issue the decision forthwith thereafter, which meant that the condition imposed by Briggs was not met.  The judge held that the decision was late.

Paragraph 25 of the CIC procedure purported to render late decisions effective unless and until the dispute was referred to another adjudicator.  Thus, on the face of it, this provision would render the adjudicator’s decision enforceable. 

However, given that the statutory provisions relating to time limits are mandatory, not directory, the court concluded that paragraph 25 was incompatible with the statutory scheme.  Moreover, to have two competing sets (i.e. contractual and statutory) of adjudication provisions applicable to an adjudication would be a recipe for confusion.  Where a provision in a contractual adjudication procedure was non-compliant with the HGCRA, the entire procedure would be deemed non-compliant and therefore the statutory adjudication scheme would apply instead.

In conclusion, the Judge Havery QC found that the CIC adjudication procedure was ineffective and that the statutory adjudication scheme would apply instead.  The adjudicator’s decision was reached late and therefore was out of time.  The decision was unenforceable.

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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