This case is an application for summary judgment to enforce the decision of the adjudicator dated 15 November 2019, where the defendant – Greyhound Investing Corporation (“Greyhound”) had not been involved in the underlying claim. Greyhound is a BVI company. This is important as it goes to the question in respect of the claim and application.

By way of background, the claim brought before the adjudicator was straightforward. On this building contract there was a final valuation issued by McLaren Construction Limited (“McLaren”) against Greyhound on 18 March 2019 amounting to £858,097.50 plus VAT.  Under the contract provisions, the last date to exercise the right to deduct liquidated damages or serve a pay less by notice was 5 April 2019. Greyhound did not serve either of these notices on time and both arrived by courier on 8 April. The liquidated damages notice was dated 01 April 2019 and the pay less notice was dated 04 April 2019. 

During the adjudication, McLaren tried to claim that the dispute was actually two disputes and as such there should be two adjudications. Mr Justice Waksman agreed with this decision, stating that the notices were plainly out of time and defective, so there was no option but for the adjudicator to make the decision that he did. As a result, he held that Greyhound should pay McLaren £1,062,565.06..

However, interestingly, the question of service was a prominent part of this Judgment. The claim form and application to serve out of jurisdiction was issued on 28 November 2019. There was a clear case for this service out as the contract has and English law and jurisdiction clause within it which incorporated the relevant TeCSA rules. As a result on 10 December 2019 O’Farrell J granted permission to serve to their office or elsewhere in the BVI, and the following day Fraser J gave permission to McLaren to issue this application providing 31 days to serve the Claim Form and 45 days to serve the Particulars of Claim.

Witness evidence was provided by the Claimant’s solicitors that Greyhound was served at is registered office and the registered agent had confirmed that he was authorised to accept service. However, the Response Pack contained the usual (domestic) period for serving the Acknowledgement of Service and Defence rather than the period that had been sent out in the order of O’Farrell J. However, the Judge did not consider this as prejudicial to Greyhound as Greyhound had been served with the relevant orders and were therefore aware of the dates. 

The4 other issue that Waksman J considered was the guidance for the Defendants served out of jurisdiction (Form N1D). Whilst the Judge acknowledged that there is no express requirement that this form should accompany the pack, McLaren sought an order from the Judge waiving this obligation (to the extent it exists)  under CPR 3.10. The Judge had “no difficulty” in providing this order. 

As a result of the above, Mr Justice Waksman went on to consider the summary judgment application and, as set out above, upheld the decision of the adjudicator.