In the case of Harding (t.a MJ Harding Building Contractors) v Paice [2014] EWHC 4819 the Technology and Construction Court (TCC) held that an adjudicator had jurisdiction to determine a dispute even though the parties had deleted some of the adjudication provisions from their contract.

All of the adjudication provisions in the contract must be deleted in order to remove the contractual right to adjudicate.

The Facts

The parties entered into the JCT Intermediate Building Contract IC 2011 in 2013.

The parties amended the contract to delete Article 7, which states “if any dispute or difference arises under this Contract, either party may refer it to Adjudication in accordance with clause 9.2.”

Clause 9.2 of the contract was not deleted.

Harding said that the deletion of Article 7 meant that the parties intended that adjudication would not apply to the contract, whereas Paice contended that by keeping Clause 9.2 in the contract the parties intended that adjudication would apply.

The Court’s Decision

The TCC held that under the terms of the contract it was not strictly necessary to have an article in order to incorporate a provision in the conditions of the contract if those conditions are incorporated in any case. As such, the absence of Article 7 does not mean that Clause 9.2 has no effect.

Clause 9.2 is a self standing provision on adjudication. If the parties wish to remove the contractual right to adjudicate then this clause must be deleted in its entirety.

Comment

Ordinarily if there is no contractual right to adjudicate, the parties will have a statutory right to adjudicate under the Scheme for Construction Contracts 1998.

However, the parties here fell within the residential occupier exemption of section 106 of the Construction Act 1996, which means that had the parties removed adjudication from their contract no other avenue to adjudication would have been available.

This case is a reminder that if parties wish to amend their contract to exclude adjudication, they need to ensure that all of the relevant clauses are deleted.

This article was originally published by Walker Morris on 10/09/15.

 

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