On 19 November 2018, Land End Developments Construction Ltd (“Land End”), the main contractor on a housing development in Cheshire, engaged Kingstone Civil Engineering Ltd (“Kingstone”) to carry out enabling works for the development under a sub-contract. On 2 March, Kingstone issued an interim payment application for the sum of £356,439.19. At 07:46 on 20 March, Kingstone submitted a request via email to RICS for the appointment of an adjudicator. Later that day, a meeting was held between representatives of Kingstone and Lane End, in which the former gave Lane End a document headed “Notice of Referral.” 

On 23 March, Mr Paul Jenson (the “Adjudicator”) advised the parties that he had accepted his nomination by RICS to act as Adjudicator. The following day, Lane End’s agent Mr John Mason challenged the nomination on the grounds that Kingstone has failed to give them notice of adjudication under the Scheme for Construction Contracts 1998 (the “Scheme”). Lane End argued that the document given to them at the meeting on 20 March “did not do enough” to disclose an intention to refer the dispute to adjudication and therefore failed to comply with the Scheme. 

The adjudication continued and on 27 April, the Adjudicator found that Kingstone were entitled to the full amount in Interim Application No.17 (the “Decision”). Lane End then commenced court proceedings to have the Adjudicator’s decision set aside or rendered unenforceable. In turn, Kingstone sought summary judgment for payment of the sum awarded by the Adjudicator.

The TCC found that the Adjudicator had not been validly appointed because Kingstone submitted their request for appointment of an adjudicator before issuing their notice of adjudication to Lane End. This amounted to a breach of paragraph 2(1) of Part 1 of the Scheme which states that the request for the appointment of an adjudicator is to be submitted “following the giving of a notice of adjudication.” The Judge found therefore that the adjudicator did not have jurisdiction to make the Decision. 

Kingston put forward the argument that Lane End had waived the defect by election. This was rejected by the court, which held that Lane End was not able to waive the error. The Judge states that “ no person can meaningfully make an election if unaware of his opportunity to do so”, before finding that Lane End did not have sufficient knowledge to make an election prior to the Decision. The following question was whether Lane End waived the defect or lost its right of election by participating in the adjudication without sufficiently reserving its rights. Lane End challenged Mr Jensen’s appointment from the very beginning, reserving their position as to jurisdiction in an email dated 24 March 2020, and further emails on 25 March, 16 April ad 23 April. The Judge was therefore satisfied that Lane End successfully reserved its rights to participate without conceding the relevant jurisdictional objection.

This case demonstrates the importance of following procedural rules, regardless of any potential merits of a particular claim. Kingstone’s failure to adhere to the mandatory timing provisions rendered the adjudicator’s decision void. Attention should also be drawn to Lane End’s early and specific reservation of their rights on jurisdiction, which on the whole is a sensible position to take upon receipt of a Notice of Adjudication.