Primus Building v Pompey Centre & Slidesilver [2009] EWHC 1487

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What counts as sufficient service of an adjudication notice when a contract requires “personal delivery”?  Will the court enforce an adjudicator’s decision that is reached having regard to matters which both the parties have agreed should be ignored?

Technology and Construction Court, Mr Justice Coulson


Pompey employed Primus pursuant to a bespoke contract to provide construction management services in relation to a new build hotel and office complex.  Part of the works was cancelled.  Primus claimed loss of profit in the sum of £107,253.73 plus VAT and served an adjudication notice on Pompey by post.  The contract stated that all notices needed to be served either by “personal delivery” or by fax.

The adjudicator decided Pompey should pay Primus £47,870.91 plus VAT.  The adjudicator based his decision in part on the profit figures in Primus’ accounts, despite the parties having agreed that these accounts were irrelevant to the adjudication.  The adjudicator did not give either party the opportunity to make submissions on these accounts.


Coulson J considered the following three issues:

  • whether the adjudication notice had been served properly under the terms of the contract;
  • whether the adjudicator had overstepped his jurisdiction by considering the profit figures in Primus’ accounts; and
  • if the adjudicator had not overstepped his jurisdiction by considering the profit figures in Primus’ accounts, did the rules of natural justice in any event require him to invite the parties to make submissions on the accounts?


Coulson J began by restating the general principle that the Courts will generally seek to enforce adjudicators’ decisions.  Following Carillion Construction Ltd v Devonport Royal Dock [2005] BLR 310, the Courts would only refuse to enforce an adjudicator’s decision if (i) the question the adjudicator answered was clearly not the one referred to him or (ii) the manner in which he had undergone his task was obviously unfair.

Coulson J found that post was an adequate means of service of a notice of adjudication for the purposes of this particular contract.  In reaching this conclusion he drew a distinction between “personal delivery”, as the contract required, and the more commonly used phrase “personal service”.  In Coulson J’s judgment “personal service” requires “the handing over of the document in question in a personal exchange between two individuals” (i.e. delivery by hand), whereas “personal delivery” or “delivered personally” means “actual delivery by an appropriate individual within Primus to a similarly appropriate individual within Pompey”. The method of delivery did not matter, provided that the document was actually delivered.  Coulson J was also influenced by fact that the contract referred expressly to an “address for service”, which distinguished the required procedure from “personal service”, which can happen anywhere.  The situation was similar to that in Construction Partnership UK Ltd v Leek Developments Ltd [2006] EWHC B8 TCC where “actual delivery” was deemed to include postal delivery.  Coulson J noted that the Courts were reluctant to find that service is faulty on technical grounds, though he did state that it was fortunate for Primus that the Notice of Adjudication had in fact been received by an appropriate individual: it would have been a different matter if the Primus had actually been kept in the dark about the adjudication due to faulty service.

On the issue of jurisdiction, the Court found the parties had agreed that the profit figures in Primus’ accounts should be ignored.  The adjudicator had therefore overstepped his jurisdiction by considering those accounts.  In line with previous case law such as Shimizu Europe Limited v LBJ Fabrications Ltd [2003] BLR 381, it was not the adjudicator’s place to go beyond what the parties had agreed in that regard. 
Coulson J also found that if he was wrong concerning the issue of jurisdiction (and the adjudicator had indeed had jurisdiction to consider Primus’ accounts) then in any event the adjudicator’s failure to invite the parties to make submissions in relation to Primus’ profit accounts constituted a breach of the rules of natural justice.  As the breach was material and significant, going to the heart of the matter, the adjudicator’s decision would not be enforced.

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