REPUDIATION NOT APPLICABLE TO STATUTORY ADJUDICATION

In Lanes Group plc v Galliford Try Infrastructure Ltd [2011] EWHC 1035 (TCC), [2011] All ER (D) 10 (May), Mr Justice Akenhead held that, while a purely contractual adjudication agreement could be repudiated (for example, where one party evinces an intention no longer to be bound by the agreement) the same could not be said of an adjudication agreement subject to the Housing Grants, Construction and Regeneration Act 1996. The concept of a repudiatory breach does not apply to statutory rights. It follows that a party cannot lose its statutory right to refer a dispute to adjudication by repudiating the adjudication agreement. But it does not follow that the courts are powerless to prevent a party from abandoning a reference to adjudication and then making, for no reason other than its dislike of the initial adjudicator, a second, identical reference to adjudication. Although the basis on which the courts can intervene to prevent behaviour of this type is not clear, Akenhead J did indicate that, in his judgment, the courts might be able to restrain a party from pursuing the same relief for the same dispute, time and again, in adjudication.

The Facts

The defendants, Galliford Try Infrastructure Ltd, were employed as the main contractor on a refurbishment project and they in turn employed the claimants, Lanes Group plc, as a sub-contractor for certain roofing and glazing works. The sub-contract incorporated the CECA Form of sub-contract (July 1998, February 2008 amendment) which contained a clause entitling a party to refer a dispute to adjudication to be conducted under the Institution of Civil Engineers’ Adjudication Procedure.