Adjudication
Fence Gate Limited v James R Knowles Limited (2001) TCC

© Daniel Atkinson 2001     23 July 2001

The issue in Fence Gate Limited v James R Knowles Limited (2001) TCC was whether the Adjudicator had jurisdiction to order Fence to make payment to J R Knowles on a number of invoices for services rendered.

James R Knowles provided consultancy services in relation to construction work at Fence’s premises. The services that was agreed to be provided was a preliminary report on a defective kitchen floor. There was no issue with the report. It was also contemplated that arbitration support services may be provided in the form of expert witness services. Services were indeed provided in an arbitration which were described by the Adjudicator as of two types

a) evidence as a witness of fact as architect or engineer and

b) assistance in the arbitration as architect or engineer.

The services were not therefore for contract administration which would have clearly fallen within the Act.

His Honour Judge Gilliland QC held that providing factual evidence at an arbitration or assisting a party at an arbitration were not themselves construction operations as defined by Section 105. It did not follow however that they were not activities “in relation to construction operations” for the purposes of Section 104(2).

The starting point was to consider the actual language of the Act. It was held that the giving of evidence by an architect, designer or surveyor at an arbitration did not fall within the words of Section 104(2)(a). It was not the “doing” of architectural designing or surveying work itself. Reporting back the result of a survey might be an essential part of surveying services and included in the “doing” of the work, but giving factual evidence at an arbitration or court of what was found was a significantly different activity. A witness of fact stated what he had seen or done for the purpose not of assisting or advising the client but to inform the Tribunal. Any relevant work has been carried out before the evidence is given. The giving of factual evidence in connection with a dispute is an activity which is additional to the survey itself and is not an incident of the survey.

Likewise, assisting at an arbitration was not the same thing as providing advice on building or engineering. Any advice will be advice in relation to how the arbitration should be conducted. It is not advice on or about the construction operations themselves but rather advice or the provision of information in relation to the conduct of the arbitration.

It was held that the words in Section 104(2) should be given their ordinary meaning and refer to the actual carrying out of the architectural, design or surveying work and to the provision of advice on building or engineering matters. They did not extend to refer to or include advice or assistance as to how an arbitration should be conducted or to giving of factual evidence at an arbitration hearing. The fact that advice in a professional capacity had been given at an earlier stage did not convert assisting at an arbitration into the provision of advice on building or engineering.

It was held that the Adjudicator did not have jurisdiction.