Vision engaged Lancsville to construct a structural shell and external envelope to 5 blocks at a residential development at a site in London. The contract was an amended JCT Design and Build Contract 2005 Edition which provided that the Scheme would apply. Part way through the works, the parties agreed that the external envelope works would be omitted from the Contract. This agreement included a revised method of working for Lancsville and other fundamental changes to the way the work was to proceed and be handed over.

Further problems arose with Block 5 and it was agreed that the works would be carried out but again on an entirely different basis which altered/reduced the scope of works, the nature of the possession of the site and the issue of practical completion, LADs and the issue of non-completion notices. Disputes arose concerning when the blocks were completed by Lancsville and subsequently Vision purportedly determined Lancsville’s employment under the Contract.

Lancsville commenced two separate adjudications concerning whether the determination was unlawful and for non-payment of part of an interim valuation. Lancsville then issued a third notice of adjudication to Vision seeking various declarations that the nature of the works had changed such that LADs no longer applied. Later, on the same day, Vision issued a notice of adjudication, adjudication 4, for repayment of LADs in accordance with the Contract. Only one minute later, Lancsville requested that the RICS appoint an adjudicator in adjudication 3. On the same day, Lancsville then issued a modified notice of adjudication for adjudication 3, the amendment being to the items of redress, that Vision should be responsible for the adjudicator’s fees and expenses.

In adjudication 3, the adjudicator decided in Lancsville’s favour, concluding that following the agreement to omit the external envelope works, many provisions of the Contract had fallen away, and were consequently not applicable. In particular he decided that LADs could not be levied against Lancsville, Lancsville could not apply for loss and expense and that time was at large. Vision rejected the validity of this decision, and that the decision was not binding on the adjudicator in adjudication 4, the second. Lancsville argued that the dispute in adjudication 3 was substantially the same dispute as that in adjudication 4 and therefore the adjudicator had no jurisdiction to act any further. The adjudicator suggested to the parties that he considered the subject matter of adjudications 3 and 4 were the same or substantially the same and that the parties should apply to the court for a decision as to the validity of the previous decision. He would not issue his decision before the court’s judgement.

Accordingly, Vision commenced Part 8 proceedings for a declaration that decision in adjudication 3 was null and void and of no effect as it was made without jurisdiction. Lancsville also sought to recover the amount of the adjudicator’s fees. Vision also submitted that that the decision was vague and unambiguous because it contained idiosyncratic phrases. It was accordingly unclear as to whether any provisions of the Contract remained, whether the Contract had been varied or if the Contract been abandoned completely. The Judge held that it was not so unclear as to render the decision unenforceable. It was clear that the decision was that certain parts of the Contract remained in effect, for example, the right to adjudicate. What was decided was that certain parts of the Contract were no longer applicable, or capable of being applicable, following the agreement to omit the external envelope works, for example the ability of Vision to levy liquidated damages.

Vision also submitted that the adjudicator had no jurisdiction to reach a binding decision. Vision stated that it was clear that the adjudicator had acted under the modified notice of adjudication because he had ordered Vision to pay his costs and expenses pursuant to the amended item of redress. The Scheme provides that a request for nomination of an adjudicator must come after the notice of adjudication. In these circumstances, Vision submitted, the request to the RICS had come after the initial notice of adjudication but prior to the modified notice.

The Judge agreed with this submission and held that the adjudicator had no jurisdiction to act under the modified notice. He concluded that it was a strict obligation that any request for nomination must be made at the same time, or following, the service of a notice of adjudication. The Judge had a misgiving about this conclusion in that the amendment made was of limited importance to the dispute as a whole, but felt this was overwhelmed by the possibility that an amendment introduced in this way could, in other instances, be much more significant. The Judge thought it preferable that this question of jurisdiction should not be decided on the particular significance of the amendment.

Accordingly the judge issued a declaration that the decision in the third adjudication was null and void and of no effect on the parties.