VALIDITY OF CONTRACTUAL REQUIREMENT TO ADJUDICATE PRIOR TO COMMENCEMENT OF ARBITRATION

In Anglian Water Services Ltd v Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC), [2010] All ER (D) 252 (Jun) Mr Justice Edwards-Stuart held that a contract term which obliged a party to refer a dispute to adjudication before it could pursue it either by litigation or arbitration did not impose any fetter on the right to refer a dispute to adjudication at any time and so was not inconsistent with the requirements of s108 of the Housing Grants, Construction and Regeneration Act 1996. He also held that the contract requirement that communications be sent to a particular address was mandatory so that a communication sent in another form which was claimed to be equally advantageous was not effective. In concluding that the communication requirement was mandatory Edwards-Stuart J attached importance to the need to provide certainty in the case where the notice requirement is of ‘general application to a large number of different types of communications.’ In such a case the purpose of the clause is to channel communications through a particular office and that purpose would be undone if communication could be sent in some other way.