This is a relatively brief document used to let the other party know that a dispute is being referred to adjudication. The notice should follow the requirements laid out in the Contract (note, many adjudication provisions in Contracts simply mention the Scheme for Construction Contracts (‘The Scheme’) applying to the Contract). Upon service of the notice of adjudication, proceedings are commenced.
The notice must be served under Part 1, Paragraph 1 of The Scheme, setting out:
- The nature and a brief description of the dispute and the parties involved;
- Details of where and when the dispute has arisen;
- The nature of the redress sought; and
- The names and addresses of all parties to the contract.
Does a breach of the Scheme requirements render the adjudication notice invalid?
Whilst it is important to comply with the requirements of the Scheme in relation to the notice of adjudication, in the case of University of Brighton v Dovehouse Interiors Limited  EWHC 940 (TCC), Mrs Justice Carr noted at paragraph 64 that, “The authorities make it clear that not every breach of a requirement of the Scheme is such as to render a notice invalid.” Reference in this case is made to the case of Hart Investments Ltd v Fidler  109 Con LR 67, whereby Coulson J stated that service on day 8 (of the documents accompanying the referral notice) did not mean that there had been a failure to comply with the adjudication timetable: “although clause 41A (of the contract) sets out a mandatory timetable, it is a timetable that needs to be operated in a sensible and businesslike way.” In this case it was held that not identifying the contractually correct address was not enough to deem the notice of adjudication invalid, as the responding party still understood the nature of the dispute which was to be commenced.
Including Addresses in the Adjudication Notice
It is important to ensure that the notice of adjudication complies with the requirements of Paragraph 1 of the Scheme in line with the details given in the Contract, i.e., the address included in the notice, as per 1(3)(d) of the Scheme, must be the address which was used in the Contract. For example, these may not be the addresses used in correspondence.
Naming Parties in the Adjudication Notice
It is also important to note that the adjudication notice should include the names of the parties as they appear in the Contract. However, even this may not necessarily invalidate the notice of adjudication. In the case of MG Scaffolding (Oxford) Ltd v Palmloch Ltd  EWHC 1787 (TCC), the claimant corresponded with the defendant under its registered name and its trading name during the project (albeit, mostly with the registered name). The notice of adjudication named the responding party using their trading name. Mr Adam Constable QC held that this was not a case where the notice of adjudication had been sent to the wrong contracting party, as it had been made clear that the trading name was still an appropriate alias for the responding party. This was because it had been obvious that the trading name was the same legal entity as the responding party. In paragraph 35, Mr Adam Constable QC stated, “The exercise is to assess the notice as a whole against its contractual setting how it would have informed a reasonable recipient. I do not accept that there is much to be gained in distinguishing, as Mr Arnold sought to do, between how a ‘reasonable recipient’ might approach the task as opposed to some other objective third party, and to the extent that there might be some difference, I consider… that the proper approach is to consider, objectively, how a reasonable recipient of the Notice would construe the Notice.”
In Gerard Ferns, Kerry-Ann Ferns v Keith West, Adam West, Linda West (T/A Haven Build)  EWHC 141 (TCC) an adjudication was brought against an unregistered partnership trading as ‘Haven Build’ (but never registered as such), the contract was between the claimants and the trading name. The notice of adjudication made reference to the trading name, not the individual members of the partnership. The defendants argued that the adjudication was invalid as a result of this. Mr Justice Fraser held that any party/party name which could be deemed a contracting party to the contract can be included on the notice of adjudication. In this case, the Contract was made with the trading name, so it was right that the notice of adjudication included that name.
Nevertheless, it is good practice to ensure the notice is addressed to and served on the responding party using the name and address as listed in the Contract.
This topic was discussed in our webinar ‘Hung(a)ry for Construction & How to Win Adjudications” in April 2021 with Dr Gabriella Gálik of KCG Partners and Kim Franklin KC of Crown Office Chambers. Click here to view the webinar and presentation.
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