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England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Lane End Developments Construction Ltd v Kingstone Civil Engineering Ltd [2020] EWHC 2338 (TCC) (28 August 2020)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/2020/2338.html
Cite as: [2020] EWHC 2338 (TCC)
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Neutral Citation Number: [2020] EWHC 2338 (TCC)
Case No:HT-2020-MAN-000021
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Date: 28th August 2020
Before :
His Honour Judge Halliwell
(sitting as a Judge of the High Court at Manchester)
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Between :
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LANE END DEVELOPMENTS CONSTRUCTION LIMITED |
Claimant |
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- and - |
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KINGSTONE CIVIL ENGINEERING LIMITED |
Defendant |
Case No:HT-2020-MAN-000173
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Between :
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KINGSTONE CIVIL ENGINEERING LIMITED |
Claimant |
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- and –
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LANE END DEVELOPMENTS CONSTRUCTION LIMITED |
Defendant |
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Ms Serena Cheng QC (instructed by Gateley plc) for Lane End Developments Construction Limited
Mr Anthony Philpott (instructed by Direct Access) for Kingstone Civil Engineering Limited
Hearing date: 30th June 2020
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JUDGMENT APPROVED
HHJ Halliwell:
(1) Introduction
5. The main issues are whether the adjudicator had jurisdiction to make the 27th April Decision and, if not, whether, as responding party, Lane End has waived the defect by election or is estopped from relying upon it.
(2) Factual and procedural sequence
(3) The regulatory framework
Part 1
Adjudication
Notice of Intention to seek Adjudication
“1 (1) Any party to a construction contract (the ‘referring party’) may give written notice (the ‘notice of adjudication’) at any time of his intention to refer any dispute arising under the contract, to adjudication.
(2) The notice of adjudication shall be given to every other party to the contract.
(3) The notice of adjudication shall set out briefly –
(a) the nature and a brief description of the dispute and of the parties involved,
(b) details of where and when the dispute has arisen,
(c) the nature of the redress which is sought, and
(d) the names and addresses of the parties to the contract (including, where appropriate, the addresses which the parties have specified for the giving of notices).
2 (1) Following the giving of a notice of adjudication and subject to any agreement between the parties to the dispute as to who shall act as adjudicator-
(a) the referring party shall request the person (if any) specified in the contract to act as adjudicator, or
(b) if no person is named in the contract or the person named has already indicated that he is unwilling or unable to act, and the contract provides for a specified nominating body to select a person, the referring party shall request the nominating body named in the contract to select a person to act as adjudicator, or
(c) where neither (a) nor (b) above applies, or where the person referred to in (a) has already indicated that he is unwilling or unable to act and (b) does not apply, the referring party shall request an adjudicator nominating body to select a person to act as adjudicator.
(2) A person requested to act as adjudicator in accordance with the provisions of paragraph (1) shall indicate whether or not he is willing to act within two days of receiving the request.
3 The request…shall be accompanied by a copy of the notice of adjudication.
5 (1) The [relevant] nominating body…must communicate the selection of adjudicator to the referring party within five days of receiving a request to do so.
(3) The person requested to act as adjudicator…shall indicate whether or not he is willing to act within two days of receiving the request.
7 (1) Where an adjudicator has been selected…the referring party shall, no later than seven days from the date of the notice of adjudication, refer the dispute in writing (the ‘referral notice’) to the adjudicator.
(2) a referral notice shall be accompanied by copies of, or relevant extracts from, the construction contract and such other documents as the referring party intends to rely upon.
(3) A referral notice shall, at the same time as he sends to the adjudicator the documents referred to in paragraph (1) and (2), send copies of those documents to every other party to the dispute.
(4) Upon receipt of the referral notice, the adjudicator must inform every party to the dispute of the date that it was received.
9 (1) An adjudicator may resign at any time on giving notice in writing to the parties to the dispute.
(2) An adjudicator must resign where the dispute is the same or substantially the same as one which has previously been referred to adjudication, and a decision has been taken in that adjudication.
(3) Where an adjudicator ceases to act under paragraph 9(1)-
(a) the referring party may serve a fresh notice under paragraph 1 and shall request an adjudicator to act in accordance with paragraphs 2 to 7: and
(b) if requested by the new adjudicator and insofar as it is reasonably practicable, the parties shall supply him with copies of all documents which they had made available to the previous adjudicator.
(4) Where an adjudicator resigns in the circumstances referred to in paragraph (2), or where a dispute varies significantly from the dispute referred to him in the referral notice and for that reason he is not competent to decide it, the adjudicator shall be entitled to the payment of such reasonable amount as he may determine by way of fees and expenses reasonably incurred by him….
Adjudicator’s decision
20 The adjudicator shall decide the matters in dispute. He may take into account any other matters which the parties to the dispute agree should be within the scope of the adjudication or which are matters under the contract which he considers are necessarily connected with the dispute. In particular, he may-
(a) open up, revise and review any decision taken or any certificate given by any person and referred to in the contract unless the contract states that the decision or certificate is final and conclusive,
(b) decide that any of the parties to the dispute is liable to make a payment under the contract (whether in sterling or some other currency) and, subject to section 111(9) of the Act, when that payment is due and the final date for payment,
(c) having regard to any term of the contract relating to the payment of interest decide the circumstances in which, and the rates at which, and the period for which simple or compound rates of interest shall be paid.
Effects of the decision
23 (2) The decision of the adjudicator shall be binding on the parties, and they shall comply with it until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement between the parties.
Part II
Payment
Dates for payment
6 Payment of the contract price under a construction contract (not being a relevant construction contract) shall become due on
(a) the expiry of 30 days following the completion of the work, or
(b) the making of a claim by the payee,
whichever is the later.
7 Any other payment under a construction contract shall become due
(a) on the expiry of 7 days following the completion of the work to which the payment relates, or
(b) the making of a claim by the payee,
whichever is the later.
Final date for payment
8 (1) Where the parties to a construction contract fail to provide a final date for payment in relation to any sum which becomes due under a construction contract, the provisions of this paragraph shall apply.
(2) The final date for the making of any payment of a kind mentioned in paragraphs…6 or 7 shall be 17 days from the date that payment becomes due.
Payment notice
9 (1) Where the parties to a construction contract fail, in relation to a payment provided for by the contract, to provide for the issue of a payment notice pursuant to Section 110A(1) of the Act, the provisions of this paragraph apply.
(2) The payer must, not later than five days after the payment due date, give a notice to the payee complying with sub-paragraph (3).
(3) A notice complies with this sub-paragraph if it specifies the sum that the payer considers to be due or to have become due at the payment due date and the basis on which that sum is calculated.”
(4) The covert recording of the 20th March Meeting
21. The hearing before me was fixed simply for the substantive determination of Lane End’s Part 8 claim and Kingstone’s application for summary judgment on its Part 7 claim. Whilst the parties have filed a series of witness statements, it was never envisaged the witnesses would be orally examined. Initially, the 20th March Meeting barely featured in the evidence. However, this appears to have changed when Kingstone filed Martin Barker’s second witness statement dated 12th June 2020 stating that Craig Dulson, a director of Lane End, had confirmed receipt of the nomination request from RICS on arrival at Lane End’s offices for the 20th March Meeting. On the following day, 13th June 2020, Mr Rudi Haubus, Kingstone’s managing director, made a witness statement in slightly different terms stating that, on arrival, “Lane End’s representatives” advised him that “they had received the notification”. This was in conflict with Craig Dulson’s observation, in a witness statement dated 5th June 2020, that “it was not until after Lane End had received the Adjudicator’s Decision…that we appreciated that info@laneend.org had received the RICS’s email…the same day that Kingstone handed over its notice of adjudication…”
22. Lane End was thus prompted to file evidence in response. The parties jointly applied for an order permitting Lane End “to serve an additional witness statement dealing with a single point arising from the witness evidence served by [Kingstone] on 12 and 13 June 2020 by 5pm on 17th June 2020 and for Kingstone “to serve rebuttal evidence limited to the single point addressed by [Lane End] by 5pm on…19th June 2020”. “The single point” was not identified but it can reasonably be inferred that it related to Mr Dulson’s alleged comment about the receipt of the nomination request. In due course, the Court made an order in the terms sought (“the June Order”). Meanwhile, Mr Dulson made a witness statement dated 17th June 2020 in which he confirmed the following.
“[6.3] I…did not see or speak to Mr Haubus or any other Kingstone representative prior to or during the meeting on 20 March 2020. I was not involved in the meeting and remained upstairs in my office until after the meeting had concluded. I then met with Mr Haubus privately to discuss resolving any potential disputes between Lane End and Kingstone.
[6.4] As stated in my first witness statement, I have never been involved in adjudication proceedings before. I was therefore unaware that an application to the RICS would have been made and what role that RICS played in the adjudication. I certainly would not have had the knowledge to allow me to have a discussion with Mr Haubus or any other person about what had or had not been received from the RICS or otherwise”.
23. In response, Kingstone has filed witness statements dated 19th June 2020 from Messrs Haubus and Barker. These witness statements are not limited to the issue about Mr Dulson’s alleged comment about the nomination request. However, Mr Haubus confirms that, immediately prior to the 20 March Meeting, Mr Dulson stated that Lane End were aware of Kingstone’s “application to the RICS”. Messrs Haubus and Barker both confirm that Mr Haubus subsequently whispered that Lane End knew of the application or request.
24. In his witness statement dated 19th June 2020, Mr Barker stated that he had “voice recorded” the 20th March Meeting and he exhibited the recording on an electronic storage device. Based on this, his witness statement included a running commentary of the meeting itself. Mr Barker suggests that it is possible to discern a point in the conversation in which Mr Haubus whispered to him, albeit in terms that are barely audible, and that Mr Barker could himself be heard to whisper that he was surprised the RICS had acted so quickly.
25. Under CPR 32.1, the Court is entitled to control the evidence. This includes a power under CPR 32.1(2) to exclude evidence that would otherwise be admissible. Under these provisions, Ms Serena Cheng QC, for Lane End, submitted that I should exclude Mr Barker’s witness statement dated 19th June 2020 and the audio recording itself on the basis it was of limited probative value. She also submitted that the evidence had been adduced at short notice without allowing Lane End a proper opportunity to deal with it and that to admit it would be contrary to Mr Dulson’s right of privacy under ECHR Article 8. The issue was also canvassed as to whether, by covertly recording the meeting, Mr Barker processed “personal data” within the meaning of GDPR Article 4(1) without complying with the regulatory requirements of the GDPR and thus acted unlawfully.
26. In response, Mr Anthony Philpott submitted that the relevant evidence was probative of the issue “of whether Lane End knew or should have known that they should have specifically reserved jurisdiction on 20 March 2020 or thereabouts…because Kingstone says Mr Dulson and the personnel and representatives of Lane End were informed that Kingstone had commenced Adjudication that morning and that they had commenced the Adjudication by submitting the Adjudication nomination form to the RICS” (Kingstone’s Written Submissions dated 20th July 2020). He also submitted that “the recording was produced in good time for the hearing on 30 June 2020 and the solicitors for Lane End remained silent in the face of it and raised no objection to it” (Para 39). It is at least implicit in his submissions that Lane End’s representatives at the 20th March Meeting - Messrs Ian Power, Michael Cunningham and Tom Hogan - could not have had any reasonable expectation of privacy at the meeting. Mr Philpott also sought to emphasise that Mr Barker recorded the meeting simply to assist in the preparation of his own notes and ensure that he had not misheard or misunderstood anything, not with any ulterior motive. Mr Philpott submitted that there could be no issue in relation to the application of the GDPR since Mr Barker had taken the recording as “a natural person in the course of a purely personal or household activity” within the meaning of GDPR Article 2(c) or the data had been gathered or processed for the purpose of exercising or defending legal rights.
27. In the exercise of my case management powers, I must apply the overriding objective in CPR 1.1, including the requirement that the case is dealt with justly and at proportionate cost, ensuring that the parties are on an equal footing, saving expense and applying the principles of proportionality and fairness. Having read Mr Barker’s witness statement dated 19th June 2020 and listened to the recording de bene esse, I am satisfied that I should exclude them for the following reasons.
27.1. Firstly, the relevant evidence is of only limited probative value. The main issue to which it pertains is Lane End’s knowledge of the defect, if any, in Mr Jensen’s appointment. For reasons to which I shall refer later, this means knowledge not only of the relevant facts but also of its right to waive the defect. The defect arose from the sequence in which Kingstone served the Notice of Adjudication and the Request. Kingstone contends that, prior to the meeting, Mr Dulson knew that it had already submitted the Request. However, Mr Dulson did not attend the meeting itself and was thus not present when Kingstone served the Notice of Adjudication. Since he did not attend the meeting, the recording does not show that, by then, he had knowledge of the Request. At its highest, it is consistent with the Kingstone’s contentions that, by that stage, Mr Haubus had been advised Lane End was aware of the Request or, at least, believed Lane End was aware of it. It is consistent with Kingstone’s contentions that, during the meeting, Mr Haubus advised Mr Barker that this was the case. It also appears from Mr Barker’s evidence that, during the meeting, he stated that “as you are aware, we’ve commenced two adjudications this morning…” Again, this is consistent with the possibility that Mr Barker perceived Lane End’s representatives were aware that an adjudication had started prior to the meeting. However, if Mr Barker had such a perception, it was misconceived. The Adjudication could not have commenced until Notice of Adjudication was served. According to Kingstone’s own case, such notice was only served during the meeting itself. This is not fertile ground on which to found a case based on the proposition that Lane End was aware of the material defect and its legal consequences or ought to have been by the time of the meeting.
27.2. Secondly, to admit the relevant evidence would give rise to procedural unfairness. The June Order was made after Messrs Baker and Haubus filed their witness statements dated 12th and 13th June challenging Mr Dulson’s evidence in relation to Lane End’s initial knowledge of the Request. The June Order thus provided Lane End an opportunity to respond and for Kingstone to file evidence in rebuttal. Lane End duly filed a short witness statement from Mr Dulson stating that he did not see or speak to Mr Haubus or any other Kingstone representative prior to or during the 20th March Meeting; indeed, he confirmed, in his statement, that he did not attend the meeting. In response, however, Kingstone ultimately filed witness statements which did more than simply rebut Mr Dulson’s observations about his own involvement. Mr Haubus and Mr Barker’s witness statements dated 19th June 2010 each encompassed events at the meeting itself. As already mentioned, Mr Barker’s witness statement contained a running commentary and exhibited his recording. In her submissions, Ms Cheng described the delivery of this evidence as an “ambush” and suggested that, owing to the imminence of the hearing, her client had been denied a proper opportunity to respond. Based only on inference, there is no room for a submission that Kingstone embarked on a preconceived strategy to preclude Lane End from fully responding to Kingstone’s evolving case in relation to the meeting. Nevertheless, since Kingstone has raised the issue of Lane End’s knowledge in order to found a case based on waiver, the burden of proof is on Kingstone. Had Kingstone provided the audio recording (together with Mr Barker’s running commentary) substantially earlier in the proceedings, Lane End would then have been presented with a reasonable opportunity to respond. Kingstone did not do so and, in consequence, Lane End has been placed at a significant tactical disadvantage.
27.3. Thirdly, the relevant evidence brings into play new issues under the Human Rights Act 1998 and the GDPR with which Lane End has not been presented an opportunity to engage properly in evidence.
27.3.1. When commencing proceedings under CPR Part 8, Lane End was unaware that Kingstone intended to rely on a covert recording of the 20th March Meeting. In those circumstances, it confirmed, on the Claim Form, that the claim did not include any issues under the Human Rights Act 1998. It has not filed evidence in relation to the covert recording. Indeed, until Kingstone served the recording together with Mr Barker’s witness statement dated 19th June 2020, Lane End had no reason to do so. It follows that Lane End has not filed evidence in relation to matters pertaining to the rights of privacy of the individuals who attended the meeting on its behalf, in particular it has not filed evidence in relation to their reasonable expectations. Before me, however, Ms Cheng sought to develop a case based on the following propositions.
27.3.1.1. Covertly recording the inter-action of persons is potentially capable of amounting to an interference with their rights of privacy, under ECHR Article 8, even if conducted in a public context. This may include activities of a professional or business nature and measures effected outside a person’s home or private residence. A person’s reasonable expectation to privacy is a significant though not necessarily conclusive factor, Vukota-Bojic v Switzerland (ECHR 61838/10, Paras 52-54).
27.3.1.2. In considering whether to exercise its discretion to exclude evidence, the court must act compatibly with Convention rights, including the rights of the persons in attendance at the 20th March Meeting, Jones v University of Warwick [2003] 1 WLR 954.
27.3.1.3. Since Mr Barker’s covert recording of the 20th March Meeting is likely to have amounted to an unlawful interference with the rights of privacy at least of the persons attending on behalf of Lane End, the Court should thus exercise its statutory discretion to exclude the relevant evidence.
27.3.2. This case was initially canvassed before me orally at the hearing on 30th June. However, I gave Lane End permission to advance additional written submissions on this issue following the hearing. Lane End’s additional written submissions were duly filed on 21st July 2020.
27.3.3. In response, Mr Philpott submitted that Vukota-Bojic and Jones were distinguishable from the present case on their facts. He took the opportunity to deliver written submissions dated 20th July 2020, prior to the delivery of Lane End’s submissions, confirming that, unlike the Jones case, the recording was made as an aide memoire rather than to advance Kingstone’s case in disputed litigation. Contrary to any suggestion that Lane End’s representatives might have been entitled to an expectation of privacy, Mr Philpott submitted, at Para 34, that “there was no requirement expressed by Lane End that this meeting should be kept private and confidential”.
27.3.4. The 20th March Meeting was apparently held for business purposes only, namely to review the parties’ state of account and resolve their differences. This is certainly how it was characterised in Paragraph 6.4 of Mr Power’s witness statement dated 5th June 2020 on behalf of Lane End. No doubt, it would have been good practice, at the outset, for Mr Barker to have advised the individuals in attendance, that he intended to record the meeting. He did not do so. However, Lane End has not filed evidence pertaining to the expectations of privacy of the individuals present at the meeting, indeed its evidence is not tailored to the issue since Kingstone only sought to deploy Mr Barker’s recording at a late stage. In the absence of further evidence, Lane End has not done enough to establish that there has been an unlawful interference with Article 8. Moreover, the issues in relation to GDPR have not been fully argued. Lane End will thus have been put to a significant tactical disadvantage if I permit Kingstone to rely on Mr Barker’s witness statement dated 19th June 2019 or his recording of the 20th March Meeting.
28. Lane End does not take any issue about Mr Haubus’s witness statement dated 19th June and, although Mr Haubus himself took the opportunity to give evidence in relation to the meeting itself, his evidence was much more limited than Mr Barker’s evidence. I have thus admitted such evidence and taken it into consideration in reaching my overall conclusions.
(5) Was Mr Jensen validly appointed as adjudicator under the Scheme?
30. On this issue, Ms Cheng QC relied on the judgment of Christopher Clarke J (as he was) in Vision Homes Ltd v Lancsville Construction Ltd [2009] BLR 525 in which the referring party initially submitted notice of its intention to refer the dispute to adjudication before its request for the appointment of an adjudicator but, critically, elected to revise the notice afterwards. Ultimately the revised notice was served no more than 18 minutes after the request. However, this was adjudged to invalidate the appointment. At Paragraph 56 (p538), the judge stated as follows.
“Not without some misgiving I accept that the adjudicator had no jurisdiction to act, as he did, under the second notice of 14 May because that notice was not followed but preceded by a request to the nominating body under 2(1)(b) of the Scheme. It is not possible, in my judgment, to regard the request as continuing so that it may be regarded as made both before and after the second notice. Clauses 2(1) and 3 of the Scheme refer to a request in writing which accompanies (rather than precedes) the relevant notice of adjudication. Further I am persuaded…that if the provisions which establish the jurisdiction of the adjudicator are not complied with it is irrelevant whether or not the other party has suffered prejudice by that non-compliance”.
32. There is nothing to suggest that the amendment to Paragraph 1(1) might somehow have been intended to alter or modify the sequence in which a party could be expected to serve notice of adjudication and submit its request to the adjudicator or nominating body. Had he intended to alter or modify the relevant sequence, the Secretary of State could have been expected to do so in clear terms. He did not do so. Moreover, it remains the case that the request must itself be accompanied by a copy of the notice of adjudication, under Paragraph 3, which is itself consistent with the proposition that the request should not precede the notice itself. The amendment to Paragraph 1(1) aligns the Scheme with Section 108(2)(a) of the 1996 Act which provides for construction contracts to enable a party to give notice at any time of its intention to refer a dispute to adjudication. It was no doubt intended to eliminate uncertainty and ensure there was no limit on the time for service rather than to alter or modify the sequence for delivery of the notice of adjudication and the request for appointment. Consistently with this, Miss Cheng referred me to the analysis in Paragraphs 2.100 to 2.110 of Coulson on Construction Adjudication (4th edn) and the uncertainty which might otherwise arise in cases, for example, where there are collateral proceedings, the underlying contract has come to an end or there is delay prior to the commencement of the adjudication. In Bresco Electrical Services Ltd v Michael J Lonsdale (Electrical) Ltd [2020] UKSC 25, Lord Briggs observed, at Para 13, that “…Parliament chose to confer the right to adjudicate ‘at any time’, so that it can be and is used to resolve disputes eg about final accounts between parties after practical completion, rather than merely at the interim stage” implicitly endorsing the commentary of Dyson LJ in Connex South Eastern Ltd v MJ Building Services Group plc [2005] 1 WLR 3323 and his conclusion that “the phrase ‘at any time’ means exactly what it says’”.
(6) Alternatively, did Mr Jensen cease to have jurisdiction following the Termination Email?
38. In the Termination Email, Mr Jensen did not purport to resign in express terms; he simply stated that Mr Anders’s email had “effectively” terminated the adjudication. However, it was accompanied by his observation that “you are of course responsible for my fees”. No doubt it was sent in error. Contrary to the impression Mr Jensen had apparently formed, Lane End had not ceased business and, had it done so, that would not have constituted good reason to terminate the adjudication. Moreover, it was sent only to Messrs Anders and Mason, each of whom represented Lane End. It was not sent to anyone on behalf of Kingstone nor, indeed, was it addressed for the attention of anyone on behalf of Kingstone. However, it is to be objectively construed in accordance with the principles in Mannai v Eagle Star [1997] AC 749 by asking how it would appear to a reasonable recipient in the same factual context. I am satisfied, on balance, that it was intended to as notice of resignation and is to be construed as such.
(7) Waiver by election
(a) Did the defect in Mr Jensen’s appointment present Lane End with the opportunity to make a relevant election?
If so,
(b) did Lane End know of the facts giving rise to its right of election and, indeed, of its right of election?
(c) did Lane End elect to waive the defect or lose its right of election by participating in the adjudication without doing enough to reserve its rights?
(a) Did the defect in Mr Jensen’s appointment present Lane End with the opportunity to make a relevant election?
46. Ms Cheng submitted that, in the present case, there is no room for this principle because the defect arises from Kingstone’s decision to request nomination of an adjudicator before serving notice of adjudication on Lane End and that, since the whole process of adjudication cannot start until notice of adjudication has been served, any step taken before service of the notice is a nullity. In support of this proposition, Ms Cheng relied on the commentary in Para 4.35 of Coulson on Construction Adjudication (4th edn) Para 4.35 (“Paragraph 2(1) makes plain that the first thing that must happen is the giving of the notice of adjudication. Only after that does the procedure involving the nominating body come into play”), Ecovision Systems Ltd v Vinci Construction UK Ltd [2015] EWHC 587 (HHJ Havelock-Allen QC, at Para 92: “any step taken before issue of the Notice of Adjudication is a step taken before proceedings have been commenced and for that reason is a nullity”), Primus Build Ltd v Pompey Centre Ltd [2009] EWHC 1487 (TCC) (Coulson J, at Para 15, “…because an Adjudicator derives his jurisdiction from the Notice of Adjudication, if it is provided that the Notice had not been validly served, it will generally operate to deprive the Adjudicator of any jurisdiction”) and IDE Contracting Ltd v RG Cambridge Ltd [2004] EWHC 336 (TCC) (HHJ Havery QC) in which it was adjudged the adjudicator lacked jurisdiction because steps had been taken to obtain his nomination before service of the notice of adjudication. There can be no reason to doubt the commentary or authorities upon which Ms Cheng relies and their logic is clear.
48. On this basis, I am satisfied Lane End was not presented with a relevant choice. There could be no adjudication until the Notice of Adjudication was served. Until then, no opportunity could have arisen for Lane End to choose between two alternative courses of action. Once the Notice of Adjudication was served, Kingstone regarded Mr Jensen as adjudicator but he was not appointed as such nor, indeed, was there any purported appointment in the adjudication. This is not a case in which he was appointed as adjudicator but there was a defect in the process of appointment and adjudication. He was not appointed to act in the adjudication at all.
49. It follows that Lane End was not presented with a choice under which it was furnished with the opportunity to cede a right. The relevant defect arises from Paragraphs 1(1) and 2(1) of the Scheme under which a party to a construction contract is afforded the right to serve notice of adjudication and request the appointment of an adjudicator. There is an obvious logic in providing for the referring party to serve notice of adjudication prior to the request for appointment. No doubt, this also provides a measure of protection to the responding party. However, it would be unduly simplistic to characterise these provisions - in the manner identified by the House of Lords in Kammins v Zenith (supra) - as procedural requirements imposed solely for the protection or benefit of the responding party.
50. I am thus satisfied that the defect in Mr Jensen’s appointment was not procedural only and, in any event, it did not present Lane End with the opportunity to make a relevant election. The relevant defect was not and is not susceptible to waiver by election. Although sub-questions (b) and (c) no longer arise, I shall consider them on a hypothetical basis.
(b) If the relevant defect was capable of waiver, did Lane End know of the facts giving rise to its right of election and, indeed, of the right of election itself?
51. No person can meaningfully make an election if unaware of his opportunity to do so. It requires knowledge of all the facts giving rise to the relevant right and of the right of election itself, Peyman v Lanjani [1985] Ch 457.
51.1. Peyman v Lanjani (supra) involved the right of a purchaser to rescind a contract for the sale of land but the Court of Appeal clarified the principles more generally so as to include cases where a party seeks to take advantage of a statutory irregularity. The purchaser sought to rescind a contract for the sale of leasehold property on the basis that the title was defective because the landlord had been misled at meetings in which the vendor had been impersonated in order to obtain licence to assign. At first instance, Dillon J dismissed this part of the claim on the grounds that the purchaser had affirmed the contract by making a payment to the vendor and taking possession. The Court of Appeal allowed the purchaser’s appeal on the grounds that, since he did not know of his right of election, he did not have sufficient knowledge to affirm notwithstanding that his daughter advised him the vendor had been impersonated and his solicitor was provided with information about least one of the occasions on which the vendor was impersonated.
51.2. At 487F-G, Stephenson LJ confirmed that “knowledge of the facts which give rise to the right to rescind is not enough to prevent the plaintiff from exercising that right… he must also know that the law gives him that right yet choose with that knowledge not to exercise it”. He adjudged that “the plaintiff can therefore rely on his own unchallenged ignorance of the law, unless he is precluded from doing so either by what he has done or by his solicitor’s knowledge of the law”. His solicitor’s knowledge was not imputed to the purchaser because there was no suggestion his solicitor had advised him that, by reason of the relevant defect in title, he was entitled to rescind.
51.3. May and Slade LJJ each agreed with Stephenson LJ’s judgment in its entirety. At 501D-E, Slade LJ confirmed that, in the absence of knowledge of his legal right to rescind, the purchaser’s conduct in entering into possession and making payment could not amount to an election to affirm the contract.
51.4. There was no room in Stephenson LJ’s analysis for the purchaser to be deemed to have constructive knowledge owing simply to carelessness or a failure to make proper inquiries. It is apparent from the judgment of May LJ, at 494D-E, that the Court of Appeal were mindful of the fact that, once a party makes its election, its choice is deemed to be irrevocable regardless of whether the other party has changed position. For this reason, actual knowledge of the relevant facts and the right of election itself are essential.
52. In Stevens & Cutting v Anderson [1990] 1 EGLR 95, the Court of Appeal applied these principles to a tenant’s application for a new business tenancy under Part II of the Landlord and Tenant Act 1954, issued less than two months after its requests for a new tenancy contrary to the requirements of the statutory regime which then applied. The landlord knew nothing of this nor, indeed, of his right to rely on it. However, he engaged a solicitor whose knowledge could reasonably have been imputed to him. His solicitor was aware of the relevant dates and thus had knowledge of the facts giving rise to his client’s relevant rights but gave evidence that he did not know, at any relevant time, of his client’s right of election. On this basis, the Court of Appeal concluded that the landlord did not have sufficient knowledge to make an election and had not waived his right to rely on the irregularity.
53. Had the putative defect been capable of waiver, I am satisfied Lane End did not have sufficient knowledge to make an election at any time prior to the Adjudicator’s decision. It did not know of all the facts giving rise to its right to make an election nor, indeed, did it know of the right itself.
53.1. As it happens, Kingstone commenced two adjudications against Lane End on the same day, 20th March. The present proceedings relate only to an adjudication in respect of a project at Rilshaw Lane, Winsford. On behalf of Lane End, Mr Ian Power, a managing surveyor, had overall responsibility for the Rilshaw Lane project. However, Mr John Mason of Contract Dispute Solutions Limited, a chartered quality surveyor and accredited mediator, was instructed to provide professional services on Lane End’s behalf.
53.2. At an early stage, Lane End sought to challenge the jurisdiction of the adjudicator. This was essentially on the basis that, in the absence of a notice of adjudication, he had not been appointed to act as a statutory adjudicator. It did not identify, as a potential issue, the sequence in which Kingstone made the Request and served the Notice of Adjudication. This issue was not investigated and thus did not come to light until after the adjudicator’s decision.
53.2.1. By its email to Lane End at 10:22 on 20th March (“the RICS Email”), the RICS advised Lane End that it had received an application for the nomination of an adjudicator in respect of the dispute between the parties in respect of the site at Rilshaw Lane, Winsford. Since the RICS Email preceded the 20th March Meeting, at which Kingstone served the Notice of Adjudication, Lane End’s employees might have been expected to infer that the Request had been made first had the RICS Email been brought to their attention at the time. However, it does not appear Lane End was copied into the Request and the RICS Email was sent to the general email address on Lane End’s website, not a specific address for Lane End’s employees. It appears from Craig Dulson’s witness statement dated 5th June 2020, that this was not immediately brought to the attention of Lane End’s employees and they were unaware that the RICS Email had been sent on the same day as the Notice of Adjudication until after they received the Adjudicator’s decision. In any event, it was only at that stage that Lane End took legal advice about the effect of this.
53.2.2. By letter dated 23rd March, Mr Jensen advised the parties that he had been nominated by the RICS to act as adjudicator. However, this letter did not record the time or date of the Request. The letter appears to have been emailed to the parties and their advisers, Messrs Mason and Barker on the same day, 23rd March.
53.2.3. It appears from Paragraph 11.3 of Mr Mason’s witness statement dated 5th June 2020 that, at his request, the RICS subsequently sent him a copy of the Request and Mr Barker’s covering email to show him that Kingstone had referred or purported to refer the matter to adjudication pursuant to the Scheme. However, he did not investigate and thus cannot have advised Lane End about the sequence in which they had been delivered.
53.2.4. Had Lane End or its agents been aware of the relevant defect in Mr Jensen’s jurisdiction or, indeed, of its right of election, they would obviously have taken the point specifically at the time. It would have made no sense to pursue their point about the validity of the Notice of Adjudication without also taking a point about the sequence in which the Request and the Notice of Adjudication were issued and served.
(c) Did Lane End elect to waive the defect or, alternatively, lose its right of election by participating in the adjudication without doing enough to reserve its rights?
54. Lane End cannot have elected to waive the defect because it did not have sufficient knowledge to do so. The issue is thus whether it lost its right of election prior to the delivery of the adjudicator’s decision by participating in the adjudication without doing enough to reserve its rights.
55. It is apparent from the judgments of the Court of Appeal in Peyman v Lanjani (supra) that, regardless of knowledge, a party loses its right of election if it fails to exercise a right and, in consequence, the other party is “adversely affected”, 491C (Stephenson LJ). In Scarf v Jardine (1882) 7 App. Cas. 345 at 360, Lord Blackburn observed as follows.
“We think so long as he has made no election he retains the right to determine it either way, subject to this, that is if in the interval whilst he is deliberating an innocent third party has acquired an interest in the property, or if in consequence of his delay the position even of the wrong-doer is affected, it will preclude him from exercising his right to rescind”.
56. In the case of adjudications under the 1996 Act and the Scheme, special considerations come into play. In Bresco Electrical Services Ltd v Lonsdale [2019] EWCA Civ 27, Coulson LJ made the following observations in a judgment with which the President of the Family Division and King LJ agreed.
“91. In my view, the purpose of the 1996 Act would be substantially defeated if a responding party could, as a matter of course, reserve its position on jurisdiction in general terms at the start of an adjudication, thereby avoiding any ruling by the adjudicator or the taking of any remedial steps by the referring party; participate fully in the nuts and bolts of the adjudication, either without raising any detailed jurisdiction points, or raising only specific points which were subsequently rejected by the adjudicator (and the court); and then, having lost the adjudication, was allowed to comb through the documents in the hope that a new jurisdiction point might turn up at the summary judgment stage, in order to defeat the enforcement of the adjudicator’s decision at the eleventh hour. To that extent, therefore, I consider that the position in adjudication is rather different to that in arbitration, and, unlike Ramsey J, I am not persuaded that the reasoning in The Marquess de Bolarque and Allied Vision is of direct application to the general reservation of a responding party’s position as to an adjudicator’s jurisdiction.
92. In my view, informed by that starting-point, the applicable principles on waiver and general reservations in the adjudication context are as follows:
i) If the responding party wishes to challenge the jurisdiction of the adjudicator then it must do so “appropriately and clearly”. If it does not reserve its position effectively and participates in the adjudication, it will be taken to have waived any jurisdictional objection and will be unable to avoid enforcement on jurisdictional grounds (Allied P&L).
ii) It will always be better for a party to reserve its position based on a specific objection or objections: otherwise the adjudicator cannot investigate the point and, if appropriate, decide not to proceed, and the referring party cannot decide for itself whether the objection has merit (GPS Marine).
iii) If the specific jurisdictional objections are rejected by the adjudicator (and the court, if the objections are renewed on enforcement), then the objector will be subsequently precluded from raising other jurisdictional grounds which might otherwise have been available to it (GPS Marine).
iv) A general reservation of position on jurisdiction is undesirable but may be effective (GPS Marine; Aedifice). Much will turn on the wording of the reservation in each case. However, a general reservation may not be effective if:
i) At the time it was provided, the objector knew or should have known of specific grounds for a jurisdictional objection but failed to articulate them (Aedifice, CN Associates);
ii) The court concludes that the general reservation was worded in that way simply to try and ensure that all options (including ones not yet even thought of) could be kept open (Equitix).”
57. On this basis, a party will generally be taken to have waived any jurisdictional objection and thus lose its right of election if it participates in the adjudication without reserving its position in clear and appropriate terms. To do so effectively, it will generally be expected to reserve its rights in terms tailored, no doubt, to the jurisdictional challenge. In the absence of good reason, a general reservation will be ineffective if the nature of the jurisdictional challenge is not identified.
58. In the present case, Lane End challenged Mr Jensen’s appointment at an early stage. By his email timed at 17:44 on 24th March 2020, Mr Mason advised Mr Jensen that his firm had been instructed to act on behalf of Lane End and that, they “reserve[d] the position of our client as to your jurisdiction until such time that we have taken further instructions and interrogated the Referral”. At this point he did not specify any ground for challenge. However, by his email timed later that evening, at 18:26, Mr Mason advised Mr Jensen that his nomination was invalid and he thus lacked jurisdiction on the basis that Kingstone had “…failed to give the required notice of adjudication of its intention to refer the dispute to adjudication and has ‘jumped’ straight to the Referral”.
59. This was followed by an email timed at 09:08 on 25th March 2020 from Mr Mason to Messrs Jensen and Barker “reserv[ing] our clients position as to your jurisdiction”. It was then observed that the Notice of Adjudication was labelled a “Notice of Referral” and did “…not express any intention to refer a dispute to adjudication”. Later in the email, Mr Mason took the point, more generally, that “…any decision would be unenforceable due to the procedural irregularities which undermine the Adjudicator’s threshold jurisdiction”. Mr Jensen resolved in favour of Kingstone Mr Mason’s argument about the “Notice of Referral” on the basis that it amounted to a Notice of Adjudication within the meaning of the Scheme. He did so by email timed at 13:59 on 25th March 2020.
60. By an email timed at 15:04 on 25th March 2020 to Messrs Jensen and Barker, Mr Mason again reserved Lane End’s “position…as to the Adjudicator’s jurisdiction”, stating that the Notice of Adjudication “…does not express any intention to refer a dispute to adjudication as required by the scheme and as such is not a ‘Notice of Adjudication’”. Later in the email, Mr Mason insisted that he was not taking “an interpretation point at all but a procedural fact based failure point”.
61. Following Mr Jensen’s email timed at 09:18 on 16th April in which Mr Jensen confirmed that he had not resigned and thus intended to continue the adjudication, Mr Mason emailed him shortly afterwards, at 09:53, to advise Mr Jensen, again, that Lane End “reserves its position as to your jurisdiction”. Later that morning, Mr Jensen emailed revised directions to Mr Mason and, upon receipt, he advised Mr Jensen that the revised directions were agreed. In doing so, Mr Mason did not purport to reserve Lane End’s position. Nevertheless, when, on 23rd April 2020, he forwarded to Mr Jensen a copy of Lane End’s Rejoinder, he confirmed, again, that Lane End “reserve[d] its position as to the jurisdiction of the Adjudicator”. Moreover, he continued to reserve Lane End’s position on jurisdiction in correspondence with the Adjudicator following the 27th April Decision.
62. It can thus be seen that Mr Mason repeatedly sought to reserve Lane End’s rights in his correspondence with the Adjudicator and Kingstone. He did not reserve Lane End’s right to take specific jurisdictional objections; he simply reserved Lane End’s position about the Adjudicator’s jurisdiction. However, it was apparent from the correspondence that he was seeking to preserve its right to challenge Mr Jensen’s “threshold jurisdiction”. In broad terms, this was on the basis that, since he had not been appointed under a valid statutory notice of adjudication, he had not been appointed under the Scheme. However, at this stage, Mr Mason’s argument was that the Notice of Adjudication was not apt, on its true construction, to amount to notice of adjudication within the meaning of the Scheme. Ms Cheng wisely chose not to pursue this argument at the hearing before me.
62.1. Mr Mason’s initial reservation in his email, timed at 17:44 on 24th March 2020, was intended as a short “holding” reservation whilst Mr Mason and his clients considered the position. Although it was not linked to any specific jurisdictional challenge, I can see no substantial reason to preclude a party making a reservation of this kind for a short period of time, fixed in advance, for the legitimate purpose of allowing time for a party to examine its rights. In the present case, Mr Mason did not specify the period required. Had the issue arisen, he could reasonably have been asked to do so. However, this email was superseded by his email, timed, no more than 41 minutes afterwards, at 18:25, setting out specific grounds for jurisdictional challenge.
62.2. Mr Mason’s emails, on 25th March, commenced with a sentence reserving Lane End’s position in general terms (“We reserve our clients’ position as to your jurisdiction” and “we reserve the position of our client as to the Adjudicator’s jurisdiction”). Having done so, however, they contained arguments about the validity of his appointment based on the proposition the Notice of Adjudication did “…not express any intention to refer a dispute to adjudication” and was thus not apt to amount to a notice of adjudication within the meaning of the Scheme. When considered objectively and as a whole, these reservations can be seen to have been made to preserve a specific jurisdictional challenge on the basis that Mr Jensen had not been appointed under a valid statutory notice of adjudication.
62.3. Miss Cheng submitted that if, indeed, the 25th March emails operated only to reserve Lane End’s rights to advance a specific jurisdictional challenge, this challenge encompassed the defect on which Lane End now relies based on the sequence in which the Request and the Notice of Adjudication were issued and served. In support of this submission, Ms Cheng relied on the email timed at 18:25 on 24th March 2020 from Mr Mason to Mr Jensen taking the point that “…the Referring Party has failed to give the required notice of adjudication of its intention to refer the dispute to adjudication and has ‘jumped’ straight to the Referral.” When this email is construed together with Mr Mason’s other emails on 24th and 25th March 2020, it is apparent this point was being taken on the grounds that the Notice of Adjudication did not amount to a notice of adjudication within the meaning of the Scheme. However, a distinction must be drawn between the conceptual basis for the jurisdictional challenge and the arguments deployed in support.
62.4. Mr Mason’s email timed at 09:53 on 16th April also contained a general reservation of Lane End’s rights in respect of the Adjudicator’s jurisdiction. This email did not refer to any grounds for jurisdictional challenge. Nevertheless, it was prompted by Mr Jensen’s 09:18 email confirming that, contrary to Mr Mason’s submissions, he had not resigned and the adjudication would thus continue. This reservation was apparently made for the purpose of preserving Mr Mason’s challenge on the grounds of Mr Jensen’s resignation although, out of an abundance of caution, he may thus be seen to have taken the opportunity to renew his reservation in respect of the earlier grounds.
63. On the hypothesis that the defect in Mr Jensen’s appointment was susceptible of waiver, I have reached the conclusion, on balance, that Mr Mason successfully reserved Lane End’s right to challenge Mr Jensen’s appointment. The reservations in Mr Mason’s emails of 25th March were not expressly limited to a specific jurisdictional objection. However, the emails contained jurisdictional objections and it was implicit that the reservations were based on these objections in the sense envisaged by Coulson LJ in Bresco (supra). The conceptual basis for the objections was that Mr Jensen had not been appointed under a valid statutory notice of adjudication. Whilst Lane End has not pursued the main argument it initially advanced in support of the objections, it has successfully deployed in these proceedings an argument based on the sequence of the Request and the Notice of Adjudication. In my judgment, this falls within the scope of the reservation since it furnishes Lane End with a challenge on the ground that Mr Jensen was not appointed under a statutory notice of adjudication.
64. If it remains necessary to apply the test suggested in Stephenson LJ in Peyman v Lanjain (supra) and ask whether Kingstone has been “adversely affected” by Lane End’s conduct, in particular the steps it has taken participating in the process of adjudication, I am satisfied it hasn’t been. Lane End successfully reserved its rights to participate without conceding the relevant jurisdictional objection. Moreover, there is no convincing evidence that, had Lane End taken a different stance, Kingstone would have changed position.
(8) Estoppel
65. In his written submissions dated 10th July 2020, Mr Philpott contended that Lane End was estopped from challenging the adjudicator’s jurisdiction. He relied on four alternative species of estoppel, namely promissory estoppel, estoppel by acquiescence, estoppel by representation and estoppel by convention. Each of these have distinct historical origins and operate according to different principles. Promissory estoppel, estoppel by acquiescence and estoppel by representation share features which are not present in estoppel by convention. In broad terms, they can be invoked where a party acts to its detriment in reliance upon a belief or understanding created or encouraged by the other. By contrast, estoppel by convention is based on a common belief or assumption and is capable of furnishing the parties with an independent cause of action, regardless of whether it relates to an interest in land.
66. Although this part of Kingstone’s case was presented with ingenuity, in my judgment it is without foundation.
67. In support of his case based on promissory estoppel, Mr Philpott submitted, in Para 41, that “Mr Mason made a clear and unequivocal representation that Lane End would not challenge the Adjudicator’s jurisdiction other than for the challenges they made in the adjudication…” No doubt this could qualify as a representation in the nature of a promise or assurance. However, contrary to Mr Philpott’s submission, Lane End’s challenge before the Adjudicator was essentially on the basis he had not been properly appointed under the Scheme, a challenge renewed before me. In support of its case before the adjudicator, Mr Mason deployed unpersuasive arguments. However, he did not say or do anything to suggest Lane End would seek to limit itself to these particular arguments in its challenge to the Adjudicator’s jurisdiction nor did anyone, on behalf of Lane End, make promises or assurances to submit to the Adjudicator’s jurisdiction in the future.
68. Mr Philpott also submitted that Mr Mason acquiesced “…in the conduct of the Adjudication and in not making the challenges that Lane End now makes he is estopped by acquiescence by his silence in respect of these particular specific challenges to jurisdiction that Lane End now makes” (Para 33). Estoppel by acquiescence arises most commonly under the doctrine of proprietary estoppel. However, mere silence is insufficient. To establish such a case, it would be necessary to show that Lane End is culpable for knowingly taking advantage of a mistake on the part of Kingstone, through its officers or employees. Knowledge of Kingstone’s mistaken belief about Lane End’s inconsistent right is essential, Kammins v Zenith (see above) 884-885. Kingstone’s case appears to be founded on the basis it mistakenly believed Lane End would, in future, limit itself to specific arguments rather than upon a mistaken belief about Lane End’s rights. It is doubtful whether this would, in itself, be capable of furnishing Kingstone with a sound case. More significantly, however, there is no substantial evidence that Kingstone was mistaken in this way or, indeed, that Lane End was aware of Kingstone’s mistaken belief. This is fatal to a case based on estoppel by acquiescence.
69. In relying on estoppel by representation, Mr Philpott submitted that “the actions of Lane End can be objectively characterised as an unequivocal representation that it was waiving the right to challenge the Adjudicator’s jurisdiction on this and all grounds of objection that they now seek to raise retrospectively” (Para 29). In substance, this is more in the nature of a promise than a representation of fact or mixed fact and law. It is also difficult to see how Lane End’s conduct could be said to amount to a clear and unequivocal representation. However, I am not satisfied it is possible to infer from Lane End’s conduct a representation that Lane End had somehow released or surrendered any rights it might have had to challenge to the Adjudicator’s jurisdiction given the lengths to which it went to reserve its rights to do so. When seeking to reserve its rights, Lane End advanced specific arguments about the Adjudicator’s jurisdiction and, more particularly, the validity of his appointment. However, nowhere can an intention be discerned to limit, in some way, the nature of his arguments on the issue.
70. In Para 24, Mr Philpott submitted that Lane End is “…estopped by convention…from now challenging the Adjudicator’s jurisdiction on new grounds not raised in the adjudication”. He did not identify the parties’ shared assumption of fact or law. It is presumably a shared assumption that Lane End was not entitled to challenge the Adjudicator’s jurisdiction otherwise than by relying on the arguments specifically advanced in correspondence at some point in time in the past. However, in my judgment no evidential basis for such an assumption is disclosed in the evidence.
71. In the hypothetical event that Kingstone could identify a promise, representation or mistaken belief with which to advance a case based on promissory estoppel or estoppel by representation or acquiescence, it would remain necessary for Kingstone to show that it acted to its detriment in reliance upon it. In my judgment, there is no evidence on which I can reasonably reach such a conclusion. Kingstone has at all times resisted Lane End’s jurisdictional challenge and continued to do so, regardless of the arguments Lane End deployed in support of the challenge. At the hearing before me, it has continued to argue that Mr Jensen acted with statutory jurisdiction regardless of its estoppel arguments. If, indeed, it is Kingstone’s case that, had it not been for the putative promise, representation or mistaken belief, it would have conceded its case and accepted Lane End’s jurisdictional challenge, this is inherently unlikely. It is thus un-necessary for me to consider whether, in substance, Kingstone is relying on these forms of estoppel defensively.
72. Estoppel by convention operates according to different principles. If Kingstone’s case is based on a shared assumption that Lane End was limited to the arguments specifically advanced in correspondence, no doubt it would need to establish that, had it not been for this assumption, Kingstone would have acted differently. Again, I am not satisfied it would have done so. On this somewhat unrealistic hypothesis, I am not satisfied that Kingstone would have acted differently, in a material way, had it known that Lane End might advance revised or additional arguments in support of its case on jurisdiction.
73. For these reasons, Kingstone’s case based on estoppel fails.
(9) Different dispute
74. Lane End presented an alternative case based on the proposition that the Adjudicator ultimately purported to determine a different dispute to the one referred to him in the Notice of Adjudication. At the hearing before me, Mr Philpott submitted that he had been taken by surprise in view of the fact that, although the evidential basis for Lane End’s alternative case could be discerned from the witness statement and exhibits, it formed no part of the case set out in Lane End’s Part 8 Claim Form. Moreover, the issue was not fully canvassed in the parties’ initial written submissions. At the end of the hearing, I thus permitted the parties to file written submissions on this issue in addition to the issue arising from the covert recording of the 20th March Meeting.
75. Ultimately, Kingstone delivered additional written submissions dated 10th, 20th and 24th July and Lane End delivered additional written submissions dated 21st July 2020. By letter dated 27th July 2020, Lane End’s solicitors contended that, since I had not provided for Kingstone to file the additional written submissions dated 20th and 24th July, I should not consider these submissions without first providing Lane End with an opportunity to respond. In view of my above conclusions, the “different dispute” issue is now entirely hypothetical. In these circumstances and, to avoid further un-necessary argument, I shall not consider this issue further. I shall not rule on the hypothetical question of whether, had the Adjudicator been validly appointed, his determination could have been successfully challenged on the basis it was directed to a different dispute from the one referred to him in the Notice of Adjudication. Subject to this, I have taken into consideration each of Mr Philpott’s additional written submissions.
(10) Disposal
76. I shall thus give judgment for Lane End on its Part 8 Claim and I shall dismiss Kingstone’s application for summary judgment on its Part 7 Claim. I am minded also to give judgment for Lane End on the Part 7 Claim. However, I shall hear further from counsel in relation to the form of the order and all consequential matters, including costs.