In the recent case of Iluminesia Ltd (t/a AlterEgo Facades) v RFL Facades Ltd [2023] EWHC 3122, the Technology and Construction Court ("TCC") rejected attempts to resist enforcement of the Adjudicator's Decision.
Factual background
AlterEgo Facades ("AlterEgo") is a supplier of architectural stone and concrete cladding that supplied cladding materials to RFL Facades ("RFL") under a sub-contract for a project known as Eastbourne Terrace, London, W2.
A dispute formed when AlterEgo supplied RFL with the carrier rail systems and sub-frame in May 2022. RFL refused the delivery of the 'GRC Fins' (architectural concrete panels) which AlterEgo treated as a repudiatory breach of contract which it purported to accept.
In June 2023, AlterEgo referred the dispute to adjudication. During the course of the adjudication, RFL raised jurisdictional challenges including:
- The Notice of Adjudication (the "Notice") failed to identify the relevant contract and was therefore invalid;
- The Notice and Referral failed to particularise the breach properly;
- The contract was not a construction contract for the purposes of s104 of the Housing, Grants, Construction and Regeneration Act 1996 and therefore the right to adjudicate could only apply if AlterEgo's terms had been properly incorporated (which RFL said they had not been);
- The Notice failed to include sufficient details of the dispute.
AlterEgo disputed each of the above jurisdictional challenges and ultimately, the Adjudicator provided his non-binding decision that he had jurisdiction. Thereafter the Adjudicator issued his Decision in which RFL was ordered to pay AlterEgo £776,920.32 plus VAT, interest and 80% of the Adjudicator's fee.
Enforcement
AlterEgo sought to enforce the Adjudicator's Decision via summary judgment in the TCC, however RFL defended enforcement, principally on the above grounds.
The TCC rejected RFL's defences finding that the parties' contract incorporated AlterEgo's standard terms which included the right to adjudicate and emphasised that it will be rare "that a Notice of Adjudication will be "knocked out" as being defective".
In respect of the Notice, this expressly referred to, and therefore incorporated, the pre-action Letter of Claim which set out the dispute and particulars of breach sufficiently – the Court was therefore content that the Notice was not defective.
Take away
This case is a helpful reminder that contracting parties should always pay close attention to the formation of an agreement and: (i) the incorporation of standard terms; and (ii) what those terms provide (in particular, whether there is a dispute resolution provision providing for adjudication).
Moreover, this case underlines the fact that a court will be very reluctant to find that a Notice of Adjudication, which sets out the ambit of the Adjudicator's jurisdiction, is defective and will look to incorporate documents to make up for any face value deficiencies in the Notice of Adjudication.
