01/09/2014
Summary
The judgment of the High Court in Westshield Civil Engineering Limited -v- Buckingham Group Contracting Limited [2013] EWHC 1825 (TCC) considered the point at which proceedings are commenced, as it was relevant to the enforcement of an adjudication. The court held that proceedings are commenced when a claim form is issued, as opposed to when it is served.
Facts
Buckingham Group Contracting Limited (“Buckingham”) sub-contracted Westshield Civil Engineering Limited (“Westshield”) to install drainage in a new studio for the popular soap, Coronation Street. The sub-contract allowed for any disputes to be referred to adjudication. In particular, clause 14(6) of that sub-contract stated that:
“Should either party be dissatisfied with the decision… that party may… refer the dispute to either legal proceedings or arbitration... If no such proceedings are commenced within the said 28 days then the Adjudicator's Decision shall be final and binding on the parties.”
The installation works were commenced in December 2011, and were completed in July 2012. However, the parties disagreed as to the amount owing: Civil Engineering claimed just over £641,000, whereas Westshield valued the work around £295,000. Buckingham referred the dispute to adjudication.
Adjudication
On 16 January 2013, the adjudicator decided that Westshield were owed a sum of £505,000. He also decided on an issue as to the identity of the parties raised by Westshield.
Although Westshield was named in the sub-contract, it is in fact a dormant company, and the company referred to in the minutes of the pre-contract meeting was a separate company called “Westshield Limited”. Albeit that the two companies had some shareholders in common, neither was the subsidiary of the other. Nevertheless, the adjudicator decided that Westshield was the correct respondent. Westshield applied to the High Court to enforce the decision.
However, unbeknownst to Westshield, Buckingham had issued legal proceedings on 13 February 2013, precisely 28 days after the adjudication decision. There were no Particulars of Claim, but brief details were included on the claim form. However, the claim form was not served on Westshield.
Issues
There were two main issues in the High Court enforcement proceedings. Firstly, had proceedings been “commenced” within 28 days of the adjudicator’s decision, in accordance with clause 14(6) of the sub-contract? Buckingham argued that issue was sufficient; Westshield argued that the claim form must be served as well.
Secondly, were there sufficient details in the claim form to establish that it was the same dispute that had been referred to the court? Again, Buckingham argued in the affirmative, and Westshield the negative.
Judgment
Mr Justice Akenhead agreed with Buckingham on both issues. Having inspected the Civil Procedure Rules, he decided that proceedings are be “started” when a claim form is issued, which is “signified by the impressing of the court stamp with a date on and usually follows the payment of the requisite fee”. The judge took “started” to be synonymous with “commenced” and therefore held that clause 14(6) of the sub-contract did not required Buckingham to have served its claim form within the time limit.
On the second issue, the court found that, although concise, the details set out in the claim form were sufficient to identify the dispute as the same one subject to adjudication, as well as satisfying the demands of Part 16 of the Civil Procedure Rules. The claim form identified the dispute as to the identity of the sub-contractor, gave a brief statement as to the nature of the claim, the type of remedy, and the value of the claim.
Therefore, the judge found that the adjudicator’s decision was not final and binding. Nevertheless, he still enforced it, refusing to grant a stay of execution.
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