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Mrs Sandra Williams t/a Sanclair Construction v Abdul Noor t/a India Kitchen [2007] (TCC) AdjLR11/29

© Daniel Atkinson 29 November 2007


KEYWORDS: Mrs Sandra Williams t/a Sanclair Construction v Abdul Noor t/a India Kitchen [2007] Adj.L.R. 11/29, Aveat Heating Limited v Jerram Falkus Construction Limited [2007] EWHC 131 (TCC), Burman v Mount Cook Land Ltd [2001] EWCA Civ 1712, Carillion Construction Limited v Devonport Royal Dockyard Limited [2005] EWCA Civ 1358, Macob Civil Engineering Limited v Morrison Construction Limited [1999] BLR93 (1999) 64ConLR1, Pegram Shoplifters Limited v Tally Weijl (UK) Limited [2003] EWCA 1750 [2004] 1AllER818, Prenn v Simmonds [1971] 1WLR138,Rok Build Limited v Harris Wharf Development Company Limited [2006] EWHC 3573 (TCC), Three Rivers District Council v Bank of England (No 3) [2001] 2AllER513, Total M and E Services Limited v ABB Building Technologies Limited [2002] EWHC 248 (TCC), Unisys International Services Limited v Eastern Counties Newspapers Limited [1991] 1LLR538, Andrew Wallace v Artisan Regeneration Limited [2006] EWHC 15 (TCC), West Bromwich Building Society v Wilkinson [2005] UKHL 44, [2005]1WLR2303, Housing Grants Construction and Regeneration Act 1996, Sections 108(1) and 114(1), Scheme for Construction Contracts (England & Wales) Regulations 1998, Scheme paragraphs 1, 1.1 and 23(2), whether paragraph 1(3) mandatory or directory, JCT Minor Works, Article 6, Clause 7.2, Clause C1.7.2, public assistanceto fund defence, contracting party not party to adjudication, company or personal capacity, right party wrong name, right name wrong party, criteria for summary judgment, not probability but absence of reality, lack of jurisdiction, invalidity of the adjudication, invalidity of notice of adjudication, breach of Business Names Act 1985 sections 4 and 5, adjudicators fees, joint and several liability.

SUMMARY:


It was accepted that the Claimant, Mrs Sandra Williams, was a party to the building contract but the issue was whether she was a party to the adjudication.

It was observed that to defeat an application for summary judgment a respondent merely has to show some prospect or chance of a successful defence, the relevant criterion being not probability but “absence of reality”.

It was held that the issue as to whether in a particular case an adjudication has been brought by the wrong party or by the correct party in the wrong name depended on the facts.

Mrs Williams owned the business but Mr Williams ran and managed it. It was argued that Mr Williams as an individual was a party to the adjudication and not Mrs Williams. It was found on the facts that the adjudication agreement was with Mrs Williams.

It was also argued that as the Notice of Adjudication did not set out the name of Mrs Williams as the contracting party, the notice was invalid and effectively invalidated the entire adjudication proceedings.

It was held that the requirements for the notice of adjudication set out in Paragraph 1 of the Scheme were not mandatory in the sense that, if the prescribed information is not given in the notice, then the notice and any ensuing adjudication is bad.

  1. The Scheme deals with practical matters, rather than matters of principle.
  2. The main practical purpose of Paragraph 1(3) is to ensure that, when a reference is made to an appointing body, that body has sufficient information to be able to appoint adjudicator.
  3. It was contrary to the purpose of the adjudication scheme to construe the terms of the Scheme in a legalistic manner. The purpose would be undermined if a party could take advantage of a failure when no party was prejudiced by the failure.
  4. There was presuasive authority that the requirements of Paragraph 1(3) of the Scheme were directory and not mandatory.

It was found that the failure to name Mrs Williams was not prejudicial to Mr Noor in any way.

Summary judgment was entered for the Claimant.