FAILURE TO CHALLENGE DECISION OF ADJUDICATOR WITHIN AGREED TIME LIMIT FATAL TO CLAIM

In Jerram Falkus Construction Ltd v Fenice Investments Inc (No 4) [2011] EWHC 1935 (TCC), [2011] BLR 644 the parties inserted into a contract a term which provided that a party ‘may commence arbitration or legal proceedings within 28 days of the date on which the adjudicator gives his decision.’ Notwithstanding the use of the permissive word ‘may’ it was held that the parties intended compliance with the 28-day time limit to be mandatory so that a failure to bring a challenge within that time period resulted in the decision of the adjudicator becoming conclusive. The case acts as a stark reminder of the importance of compliance with such contractually agreed time limits.

The facts

The present case is another saga in a long-running dispute between the parties. As Coulson J observed, the parties have been ‘extraordinarily promiscuous in their attempts at dispute resolution.’ In the present proceedings the claimant, Jerram Falkus Construction Ltd, claimed it was entitled to loss and expense under the contract. The defendant, Fenice Investments Inc, sought to defend the claim on the ground that the issue had been determined in the third adjudication between the parties so that it was no longer open to the claimant to pursue its case.