Lanes brought a Part 8 claim arising out of its subcontract with Galliford. The subcontract had been terminated and issues arising out of the termination were the subject of separate substantive proceedings.

After issuing a Notice of Adjudication, Galliford applied to the ICE for the appointment of an Adjudicator. The ICE appointed Mr Klein. Mr Klein had not proceeded in his role although he had not resigned. Galliford then made a second application to the ICE to have another Adjudicator appointed. The ICE declined to appoint on the basis they had shortly before appointed Mr Klein. Galliford made a third application to the ICE to nominate an Adjudicator and Mr Atkinson was appointed. On the same day, Mr Atkinson accepted the appointment.

Lanes objected to the objected to the appointment of Mr Atkinson on the basis that under the adjudication rules agreed by the parties (the Institution of Civil Engineers Adjudication Procedure) there had been a late sending, service of and receipt by the Adjudicator and Lanes of the Referral and the documents attached forming part of the Referral.

The subcontract incorporated the Civil Engineering Contractors Association Form of Subcontract July 1998, reprinted with amendments in February 2008 for use in conjunction with the ICE Conditions of Contract, 6th Edition.

The Notice of Adjudication was served on 21 March 2011 on Mr Atkinson. Mr Atkinson confirmed his appointment on 24 March 2011. In accordance with the ICE procedure, Galliford was to send the Referral and Statement of Case not later than Saturday 26 March. Galliford contacted Lanes’ claims consultant to ascertain where they should send the Referral. Lanes’ claims consultant responded advising that he did not have instructions to accept service. At this stage it was too late to send the documents by courier on 25 March, a Friday. The covering letter sending the Referral was faxed to Mr Atkinson, Lanes and their representatives. The courier uplifted the Referral on 26 March and delivered it to the Adjudicator on 26 March. The courier attempted to deliver it to Lanes on 26 March but their office was closed. Lanes’ copy of the Referral was delivered on 28 March. As certain hard copy cost records were previously in Lanes’ possession, they were omitted from the hard copy of the Referral and Statement of Case but the Adjudicator/Lanes were invited to request a copy. On the evening of 26 March, the actual costs records were emailed to Lanes/the Adjudicator. However, because of the size of the emails, they were not all sent and received until, at the latest 01:06 hours on 27 March 2011. Mr Atkinson then confirmed receipt of the Referral as 27 March.

It was therefore necessary to determine if there had been service for the purposes of Clause 4.1 and 4.2 of the ICE adjudication rules. In the Judge’s view, the ICE procedure differentiated between the words “send” and “receive”. Clause 4.1 must mean in context dispatched to the Adjudicator. Clause 4.2 then talks about receipt of the documents. It is logical, fair and sensible because often the date of sending was different from the date that the Adjudicator received the documents. In this case, the documents attached to the Referral were in fact served by email within 2 days apart from a number of documents served by email within 2 hours of midnight on the weekend that the clocks changed. The fact that no-one was there to pick them up was not particularly important because sending and service could be, in adjudication, by email.

The Referral was delivered to the Adjudicator within 2 days and the remainder of the documentation was delivered either within 2 days or a very short period, a couple of hours thereafter. Mr Atkinson’s jurisdiction could not be challenged on the basis that service of the Referral was made late.