Mrs Sandra Williams t/a Sanclair Construction v Abdul Noor t/a India Kitchen
Case reference:
[2007] EWHC 3467 (TCC)
Thursday, 29 November 2007
Key terms: JCT Minor Works - Identity of Referring party – adjudicator’s fees
The claimant, Sanclair Construction, was a building and electrical contractor that had carried out work for Mr Noor, the owner of an Indian restaurant. Work was carried out under a JCT Minor Works Contract. A dispute arose in connection with payment and an Adjudicator decided that Sanclair was to be paid £32,952.54 including VAT. Mr Noor was also to pay the Adjudicator’s fees.
Mr Noor did not pay and Sanclair brought enforcement proceedings.
The main issue related to the identity of the claimant. Mr Noor argued that Sanclair was a trading name for Mr Cliff Williams, rather than his wife, Mrs Sandra Williams. The adjudication had been brought in the name of Mrs Sandra Williams trading as Sanclair, and so the argument was that the wrong party had brought the adjudication, and therefore the Decision was unenforceable.
In addition, the claimant was now also claiming the unpaid fees of the Adjudicator, for which Mr Noor was responsible.
HHJ Hickinbottom considered that the proper approach to the identification of a party in arbitration had been considered in the case of Unisys International Services Limited v Eastern Counties Newspapers Limited [1991] 1 Lloyds Rep 538. In that case the Court of Appeal found that proceedings had been commenced by the right party but in the wrong name. They held that it was “fairly obvious” that the party bringing the claim was the contracting party, although the proceedings had been brought in the “wrong name”. This was just a misnomer, and so the Award was enforceable.
Lord Wilberforce in Prenn v Symons [1971] 1 WLR 138 said that that agreements, even those under seal, could not be isolated from the matrix of facts and it was important to enquire beyond the language in the documents in order to understand the view of the persons involved. In respect of adjudication, HHJ Hickinbottom referred to ROK Building Limited v Harris Wharf Development Company Limited [2006] EWHC 3573 (TCC). In that case, Judge Willcox found that the referring party was ROK Build Limited, but that the contracting party was Water Llewellyn & Sons Limited. As a result: “This was consequently a case of the correct description of an incorrect party, rather than an incorrect description of the correct party.”
On this basis, HHJ Hickinbottom considered the facts and the chronology of this case, and concluded that the correct party had started the adjudication because Mrs Sandra Williams was in fact the owner of Sanclair Construction, the bank account referred to Mrs SA Williams trading as Sanclair Construction as did the Inland Revenue card. Mr Williams ran and managed the business. But the issue of the identity of the party had only been taken in a letter to the Adjudicator and had not been raised previously by Mr Noor. On this basis, Mr Noor did not stand any real prospect of success and so summary judgment was awarded in favour of the claimant. In addition, as the Adjudicator was intent on proceeding against both parties for the recovery of his fees, the Judge also made an Order that the defendant paid the amount of the fees into Court.
Many thanks to Andrew Kearney (Counsel for the Claimant) for kindly supplying a transcript of this judgment.
Mr Noor did not pay and Sanclair brought enforcement proceedings.
The main issue related to the identity of the claimant. Mr Noor argued that Sanclair was a trading name for Mr Cliff Williams, rather than his wife, Mrs Sandra Williams. The adjudication had been brought in the name of Mrs Sandra Williams trading as Sanclair, and so the argument was that the wrong party had brought the adjudication, and therefore the Decision was unenforceable.
In addition, the claimant was now also claiming the unpaid fees of the Adjudicator, for which Mr Noor was responsible.
HHJ Hickinbottom considered that the proper approach to the identification of a party in arbitration had been considered in the case of Unisys International Services Limited v Eastern Counties Newspapers Limited [1991] 1 Lloyds Rep 538. In that case the Court of Appeal found that proceedings had been commenced by the right party but in the wrong name. They held that it was “fairly obvious” that the party bringing the claim was the contracting party, although the proceedings had been brought in the “wrong name”. This was just a misnomer, and so the Award was enforceable.
Lord Wilberforce in Prenn v Symons [1971] 1 WLR 138 said that that agreements, even those under seal, could not be isolated from the matrix of facts and it was important to enquire beyond the language in the documents in order to understand the view of the persons involved. In respect of adjudication, HHJ Hickinbottom referred to ROK Building Limited v Harris Wharf Development Company Limited [2006] EWHC 3573 (TCC). In that case, Judge Willcox found that the referring party was ROK Build Limited, but that the contracting party was Water Llewellyn & Sons Limited. As a result: “This was consequently a case of the correct description of an incorrect party, rather than an incorrect description of the correct party.”
On this basis, HHJ Hickinbottom considered the facts and the chronology of this case, and concluded that the correct party had started the adjudication because Mrs Sandra Williams was in fact the owner of Sanclair Construction, the bank account referred to Mrs SA Williams trading as Sanclair Construction as did the Inland Revenue card. Mr Williams ran and managed the business. But the issue of the identity of the party had only been taken in a letter to the Adjudicator and had not been raised previously by Mr Noor. On this basis, Mr Noor did not stand any real prospect of success and so summary judgment was awarded in favour of the claimant. In addition, as the Adjudicator was intent on proceeding against both parties for the recovery of his fees, the Judge also made an Order that the defendant paid the amount of the fees into Court.
Many thanks to Andrew Kearney (Counsel for the Claimant) for kindly supplying a transcript of this judgment.