Flexidig Ltd v M&M Contractors (Europe) Ltd

[2020] EWHC 847 (TCC)

This was an application to enforce an adjudicator’s decision, where Flexidig, a subcontractor had been awarded some £225k. One of the objections taken by M&M was that the Referral was served late. The adjudication notice was attached to a covering letter dated 20 November 2019, the underlying notice was dated 22 November, but it was common ground it was created by no later than 20 November so as to accompany the letter bearing that date. It was further common ground that the notice was received on 22 November and certainly no earlier.

M&M said that the adjudicator had no power to act at all because the referral was out of time. M&M said that the true date of the notice was 20 November 2019 because that is when it was sent. It was not disputed that the adjudicator received the reference on 29 November. Mr Justice Waksman said that if the date of the “giving of the notice of adjudication” was the date of the document when it was sent, the subsequent referral would be out of time. On the other hand, if the relevant date was the date of actual or deemed service of the notice, the referral was in time. 

Here, the date of giving notice was the date when it came to the attention of the addressee depending on the circumstances and other provisions that may apply. That might be the actual day it came to their attention or, if earlier, some deemed date. Here, under contract, any notice to be “given” shall, if posted, be deemed to be 48 hours after the posting. Here it was posted and it is accepted it was received on 22 November. 

The Judge could see no reason, on the basis of authority, principle or language, to say that the giving of notice here meant the sending of it without the consequent receipt, nor is there any practical reason otherwise so to interpret the clause. Equally, for the dispute to be referred to adjudication, the adjudicator must have received the referral. So time does not run until the addressee receives or is deemed to receive the notice. There the key date was 22 not 20 November, and the referral was served on time, namely seven days after receipt of the notice. 

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