Rohde v Markham-David (No 2) [2007] EWHC 1408 (TCC)

This summary was provided by CMS Cameron McKenna LLP.

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

It is incumbent on the adjudicator to ensure that the relevant documentation has been validly served and brought to the attention of the responding party.  Failure to do so may lead to an unenforceable adjudication decision on the grounds that the adjudication is deemed not to have been validly started and/or conducted with minimum standards of fairness and natural justice.

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

This judgment relates to the trial of a claim that was previously the subject of an application for summary judgment.  Please click here to read our Adjudication Zone case summary of that summary judgment (which sets out the facts to the case).

The principal issue was whether, given that Mr. Markham-David had never received any notices/documentation relating to the adjudication, the adjudication could be said to have started at all and whether a valid and enforceable decision was ever given by the adjudicator.  Section 115 of the Construction Act provides that a notice may be served on a person by any effective means.  If a notice or other document is addressed, pre-paid and delivered by post to the addressee’s last known principal residence… it shall be treated as effectively served.

Several notices/documents were served at Mr. Markham-David’s old address by special delivery, which were then returned by the Post Office to the sender on the grounds that the recipient had not signed for the document.  HHJ Thornton QC found that this did not constitute delivery by post – the mail was never actually delivered and therefore the adjudication was not validly started.

If the adjudication had been validly started and concluded by an enforceable decision, it would have been necessary to decide a second issue, namely whether the adjudication was conducted with minimum standards of fairness and natural justice.

As it was not, it was not necessary to decide this point.  Nevertheless, the judge did note that the adjudicator had made very little attempt to engage Mr. Markham-David in the proceedings or to keep him informed as to the progress of the adjudication.  HHJ Thornton QC commented that it was incumbent on the adjudicator to take reasonable steps to ensure that the adjudication had been validly started by trying to establish where the responding party was resident, that the appropriate documentation had been validly served and brought to the attention of the responding party.  In this case, the adjudicator had not discharged this duty.  In consequence, the procedure adopted was so unfair as to fatally compromise the validity of the adjudication even if it had been validly started.

The claim to enforce the adjudicator’s decision failed.

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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