Hart Investments Limited v Fidler and Another
The case of Hart Investments Limited v Fidler shows how an adjudicator’s decision can be defeated on a narrow procedural, technical point. It emphasises the need to comply strictly with the regime for adjudication under the Housing Grants Construction and Regeneration Act and the Government Scheme for Construction Contracts.
In the Hart Investments case the second defendant was Larchpark. Larchpark had carried out building works in Muswell Hill, London, for Hart. Larchpark obtained an adjudicator’s decision for approximately £145,000 against Hart.
One of the grounds on which Hart resisted Larchpark’s application for summary judgment to enforce the decision was that the referral notice was served out of time, being 8 days rather than 7 days after the notice of intention to refer to adjudication. On that basis it was said the adjudicator had no jurisdiction.
The court agreed with Hart and said that since the referral notice was not served within 7 days of the notice of intention to adjudicate and since Hart had not waived that irregularity, the adjudicator had no jurisdiction.
Section 108 of the Housing Grants Construction and Regeneration Act requires that a construction contract shall provide a timetable with the object of securing the appointment of the adjudicator and referral of the dispute to him within 7 days of notice of adjudication.
The Scheme for Construction Contracts provides at paragraph 7(1) that the referring party shall not later than 7 days from the date of the notice of adjudication, refer the dispute in writing to the adjudicator.
The Judge took the view that if the timetable for adjudication can be extended without consent by simply serving a referral late, there is a great danger of uncertainty and of watering-down the critical importance of the tight timetable on which the adjudication process is based.
