Ravestein B.V. -v- Trant Engineering Limited  EWHC 11 (TCC)
In the recent case of Ravestein, the TCC has again considered the requirements for a notice of dissatisfaction under clauses W2.3(11) and W2.4(2) of Option W.2 of the NEC form of contract. Whilst the Court was considering permission to appeal an arbitration award on the validity of the notice of dissatisfaction, the judgment provides a useful reminder on the requirements for such a notice.
Following an adjudication decision, Ravestein had written to the adjudicator, copied to Trant, stating that the adjudicator had to comply with the Construction Act and if the decision wasn't withdrawn a request to the ICE would be filed to "reverse the ruling". Having considered the chain of correspondence, the arbitrator had concluded that Ravestein's primary allegation was that the Referral had not been served within 7 days of the notice and therefore on Ravestein's case the "entire process is null and void". The jurisdiction and enforceability of the decision was therefore in dispute, but no mention was made as to the underlying merits of the decision.
An issue arose as to whether the notice of dissatisfaction was wide enough to permit Ravestein to refer the underlying dispute to arbitration. If the notice of dissatisfaction was insufficient, Ravestein was time barred and bound by the adjudicator's decision.
The Court considered considered the judgment of O'Farrell J in Transport for Greater Manchester v Kier Construction Limited  EWHC 804 (TCC) (Transport for Greater Manchester v Kier Construction Ltd (T/a Kier Construction - Northern)  EWHC 804 (TCC) (31 March 2021) (bailii.org)) , and the judge's conclusion that:
"A valid notice would have to be clear and unambiguous so as to put the other party on notice that the decision was disputed but did not have to condescend to detail to explain or set out the grounds on which it was disputed"
Ultimately, the arbitrator found that the reference to the Construction Act in the relied on notice of dissatisfaction could only be referring to a jurisdictional challenge, and not a challenge as to the correctness of the decision itself. The arbitrator's view was that a challenge to the jurisdiction of the adjudicator is very different to a challenge to the merits of the underlying dispute. The Court agreed, and the arbitrator's award stood meaning that the adjudicator's decision became final and binding (subject to any challenge as to jurisdiction).
This is the latest in a line of cases that the TCC has heard on the validity of notices of dissatisfaction. In addition to the Transport for Greater Manchester case cited above, other cases include:
- Prater Limited v John Sisk & Son (Holdings) Limited  EWHC 1113 (TCC) (Prater Ltd v John Sisk & Son (Holdings) Ltd  EWHC 1113 (TCC) (30 April 2021) (bailii.org)); and
- The Metropolitan Borough Council of Sefton v Allenbuild  EWHC 1443 (TCC) (The Metropolitan Borough Council of Sefton v Allenbuild Ltd  EWHC 1443 (TCC) (20 June 2022) (bailii.org))
What is clear from these judgments is that a notice of dissatisfaction needs to make clear whether a challenge is being made as to the validity of the adjudicator's decision (i.e. its enforceability on grounds of jurisdiction) in addition to, or instead of, a challenge to the substantive merits. This is essential to ensure that parties are able to refer the dispute they intend to final determination and are not caught out and faced with a final and binding adjudication decision.
Whilst notice of dissatisfaction are often looked at as an administrative step following an adjudication decision it is well worth obtaining specialist advice as to how to frame (and serve) your notices.
a challenge to the jurisdiction of the adjudicator is very different to a challenge as to the merits of his decision on the underlying dispute