Anglian Water Services Ltd v Laing O'Rourke Utilities Ltd
 EWHC 1529 (TCC)
Friday, 25 June 2010
Key terms: CPR Part 8 – Declarations – s108(2) – arbitration
Anglian engaged Laing to design and construct tanks at a sewage treatment works. The contract incorporated the terms of the 2nd Edition (1995) of the NEC Engineering and Construction Contract. Disputes arose under the Contract and were referred to adjudication. Under clause 93.1 of the Contract, a party could serve a notice of dissatisfaction of the Adjudicator’s decision. Anglian commenced proceedings under CPR Part 8, for certain declarations, including whether clause 93.1 was compatible with Part II of the Act. The judge decided that it was. The right conferred under s108(2) of the Act, is for a party to refer a dispute to adjudication at any time, but the Act is silent about whether a referral to adjudication can be a precondition of starting arbitral or legal proceedings. Whilst, under the Contract, an adjudication was a precondition to resolving a dispute under the contract, this did not fetter the right to refer a dispute to adjudication. Whilst the right to refer a dispute to arbitral or legal proceedings may be fettered, this was not contrary to the Act. The parties had agreed that the adjudication provisions were non-compliant with the Act, and should be replaced by the Scheme. However, the judge found that clause 93, as a whole, was an arbitration clause and did not form part of the Contract’s adjudication provisions. To remove clause 93.1 would essentially remove the operative part of the arbitration clause. There would exist provisions detailing the role of the arbitrator, but there would be no right to refer a dispute to arbitration. Whilst, clause 93.1 did concern adjudication, it only affected the adjudication provisions insofar as Adjudicator’s decision could become finally binding if its terms were not complied with. Accordingly, it could be operated together with paragraph 19 of the Scheme.