TCC clarifies interpretation of NEC3 notice provisions (Ravestein B.V. v Trant Engineering Ltd [2023] EWHC 11 (TCC))
In Ravestein B.V. v Trant Engineering Ltd, HHJ Kelly refused the Claimant’s application for permission to appeal an arbitrator’s decision on jurisdiction under Section 69 of the Arbitration Act 1996. Trant was the successful party in an adjudication brought against Ravestein in February 2021. In October 2021, Ravestein served a notice to refer the dispute to arbitration. Trant successfully argued before the arbitrator that he did not have jurisdiction to determine the dispute, since Ravestein had failed to comply with the Clause W2.4(2) by giving a valid Notice of Dissatisfaction. Ravestein sought leave to appeal the arbitrator’s decision pursuant to Section 69 of the Arbitration Act 1996.
Clause W2.4(2) provides as follows:
“(2) If, after the Adjudicator notifies his decision a Party is dissatisfied, that Party may notify the other Party of the matter which he disputes and state that he intends to refer it to the tribunal. The dispute may not be referred to the tribunal unless this notification is given within four weeks of the notification of the Adjudicator’s decision.”
Ravestein argued that following the decision in Transport for Greater Manchester v Keir Construction Ltd [2021] EWHC 804 (TCC) (“TfGM”), the only requirement of such a notice was to communicate that the decision in question was not accepted as final and binding (para [42(3)(b)]). It argued that as it was not necessary to set out the grounds on which the decision was disputed (per TfGM), it did not matter if the email it relied upon as a notice referred only to a jurisdictional challenge and not the underlying correctness of the adjudicator’s decision. It relied in particular upon Paragraph 43 of O’Farrell J’s judgment set out below:
“43. The Contract did not stipulate the form of words that had to be used, or the level of detail that was required in any notice of dissatisfaction. The purpose of the notice was to inform the other party within a specified, limited period of time that the adjudication decision was not accepted as final and binding. 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.”
Ravestein argued that the following email to the adjudicator was therefore a valid Notice of Dissatisfaction, on the basis that it satisfied the singular requirement to make clear that the decision was disputed. The email stated:
“After seven days you weren’t entitled to make any rulings. You must also follow the rules of the UK in 1996 by the Housing Grants, Construction and Regeneration Act (Construction Act). If you do not withdraw your ruling before tomorrow, our solicitor mister Hugh Smit will file request at ICE to reverse the ruling.”
HHJ Kelly accepted Trant’s arguments that Ravestein’s interpretation of the clause, and TfGM, was erroneous (para [50]). The judge accepted that there was a difference between the purpose of the notice and the requirements of the notice clause (see [47]) and that the clause in question clearly identified two mandatory requirements: (i) identification of the matter disputed and (ii) an intention to refer the matter to arbitration (see [52]). The judge agreed with the arbitrator (see [57]) that the email did not satisfy either requirement (see [53]). As to the requirement to identify the matter disputed, the judge agreed that Ravestein’s interpretation of TfGM elided grounds with matter (see [53]). As such, HHJ Kelly found that the decision of the arbitrator was not obviously wrong (as required by Section 69), and dismissed the appeal.
Mischa Balen (instructed by Tyr Solicitors) acted for the Claimant.
Dalton Hale (instructed by KT Construction Law) acted for the Defendant.
Click here to read the full judgment: https://caselaw.nationalarchives.gov.uk/ewhc/tcc/2023/11
