RIGHT TO NOMINATE ADJUDICATOR INCONSISTENT WITH ACT

In Sprunt Ltd v Camden London Borough Council [2011] EWHC 3191 (TCC), [2011] All ER (D) 87 (Dec) Mr Justice Akenhead held that the construction contract between the parties was in writing and so satisfied the requirements of s107 of the Housing Grants, Construction and Regeneration Act 1996 (‘the 1996 Act’). He also held that a contractual term which entitled the defendants to nominate the adjudicator was inconsistent with the requirements of the 1996 Act in that it gave to the defendants the right to nominate a judge in their own cause and such a right was inconsistent with the statutory requirement that adjudicators be, and be seen to be, impartial. Further, Akenhead J affirmed that any material non-compliance with the requirements of subsections (1) to (4) of s108 of the 1996 Act has the consequence that all of the express terms of the contract which deal with adjudication are dispensed with and replaced by the provisions of the Scheme for Construction Contracts.

The facts

In 2001 the defendant local authority entered into a written framework agreement with the claimants. The claimants provided building consultancy services (mainly as architects). The fees payable to the claimants under this framework agreement were variable, ranging between 5.5% and 15%. The framework agreement also provided that, in the event that any dispute arose between the parties out of or in connection with the contract or service, either party could refer the dispute to adjudication. In the years immediately following entry into the framework agreement, the claimants worked for the defendants on a number of occasions.