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ONE LAST SCHEME

LEGAL

Last month the Technology and Construction Court (TCC) said goodbye to His Honour Judge Richard Havery QC, writes Kim Franklin. After more than four decades in law, Judge Havery, a recognised polymath, has decided that retirement is the ideal opportunity to pursue his studies and has signed up for an MSc in applied physics at Imperial College London.

TCC Court 9 was packed with well-wishers to hear valedictions from Mr Justice Jackson, the judge in charge of the TCC; the chairs of TECBAR and TECSA; the courts' specialist barristers' and solicitors' associations; and a farewell from the judge himself.

As is so often the case, it is ironic that you find out most about people only after they have gone. It would have been useful for the hard-pressed advocate to have known, for example, that one way to buy time in front of a judge who could add up a column of figures by eye, was to present him with a series of engineer's calculations, each containing one deliberate mistake.

On the eve of his retirement, Judge Havery decided two cases dealing with the knotty topic of late delivery of an adjudicator's decision.

Hot on the heels of Epping Electrical Co v Briggs and Forrester Plumbing (Judgment 19.01.07), discussed in AJ 08.02.07, came Aveat Heating Ltd v Jerram Falkus Construction Ltd (Judgment 01.02.07) - another plumbing adjudication, but this time under the GC/Works subcontract conditions.

The contract contained the usual provisions requiring the adjudicator to reach a decision within 28 days, but added a nifty caveat: 'the adjudicator's decision shall nevertheless be valid if issued after the time allowed'. The judge held that such a provision contradicted the mandatory requirements for 28-day adjudication under the HGCR Act.

Usually, if the contract does not comply with requirements of the Act, the attendant Scheme for Construction Contracts steps in to save the day. This ensures that, whichever way you look at it, parties to the contract are entitled to adjudicate. In Aveat Heating Ltd v Jerram Falkus Construction Ltd, the claimants argued that it was not simply a case of the faulty contract versus the scheme, but that the bits of the contract that do work should be picked out and the scheme used to plug the gaps.

This necessitated the unenviable submission that the judge's decision in Epping was wrong. But the judge favoured a simpler solution: the two sets of adjudication provisions, the contract and the scheme were all alternative packages, and only one could apply in any given case. In this case the scheme triumphed over the faulty contract and the adjudicator was not entitled to extra time. Furthermore, since the 28 days should be calculated from the date when the adjudicator receives the referral notice, not when it is sent, the decision was in time.

In the final days of his judicial career, Judge Havery found the adjudication provisions of two mainstream industry procedures to be invalid. His departing score therefore stands at: Judge Havery - two; GC/Works and Construction Industry Council - nil.

Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com

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