Walter Llewellyn engaged Excel as subcontractor to carry out brickwork and blockwork. Walter Llewellyn later sold its business and assets (including the subcontract with Excel) to Rok. Damage was subsequently discovered in a number of the properties. Walter Llewellyn and Rok claimed this to be Excel’s responsibility and issued proceedings.

The subcontract consisted of a number of documents including the subcontract order which incorporated NEC 2 Subcontract with Option A and bespoke amendments. These amendments were said to override NEC2. Its purpose was to make the subcontract compliant with the Construction Act. The Subcontract Data of the NEC2 had not been completed.

Excel sought a stay of court proceedings on the basis that there was an arbitration agreement between the parties. One of the defences advanced by Walter Llewellyn was that if the standard form Clause 93.1 (which allowed a party who was dissatisfied with the outcome of an adjudication to refer the dispute to arbitration) was deleted and replaced by the adjudication provisions of the Scheme, then there was no contractual provision that enabled disputes to be referred to arbitration.

In relation to this argument, the Judge expressed the view that:

1. Clause 93.1 dealt with events after adjudication and not with the appointment or actions of the Adjudicator and therefore should not be deleted and replaced with the adjudication provisions of the Scheme.
2. As a matter of contractual interpretation, only the adjudication provisions in the Scheme that dealt with the appointment and actions of the Adjudicator were to be incorporated into the contract. Accordingly, those provisions in the Scheme that dealt with the effect or impact of the adjudication decision should be ignored.