Notify Now Or Forever Hold Your Peace ' Notices Of Dissatisfaction Under FIDIC And NEC: Part 2

• Law Firm: Fenwick Elliott LLP
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Author: Mr Jeremy Glover
• Published date: 02 May 2023

When I drafted my article for the previous edition of IQ, which can be accessed here, I did not have a Part 2 in mind. My conclusion was clear on the valuable reminder from the recent English court cases about the need for care when drafting any Notice of Dissatisfaction (or "NOD"). If you do not, there is a real risk that a failure to follow the contract will result in the decision or determination in question becoming binding, something which will apply to challenges both to the merits and any jurisdictional objection. Well, we have a saying in the UK, that you wait ages for one bus and then two or three come along together.

And so, on 9 January 2023, another decision case about NODs, Ravestein B.V. v Trant Engineering Ltd [2023] EWHC 11 (TCC), was released by the Technology & Construction Court. Trant had engaged Ravestein to carry out certain engineering works under an amended version of the NEC3 form. Clauses W2.3(11) and W2.4(2) provided that an adjudicator's decision would be final and binding unless, within four weeks of the decision, one of the parties served a NOD setting out that it was dissatisfied with a matter decided by the adjudicator and that it intended to refer that matter to the tribunal.

On 11 April 2021, an adjudicator ordered Ravestein to pay Trant some '455k plus VAT. Ravestein did not pay. The next day, on 12 April 2021, Ravestein issued two e-mails addressed to the adjudicator and copied to Trant. In the first e-mail, Ravestein stated that: "we do not accept this adjudication and your jurisdiction in this case, therefore we do not recognition your ruling." In the second, Ravestein said that the adjudicator was not entitled to make any rulings and stated that, if they did not withdraw the ruling, their solicitor would file a request to reverse the ruling.

Ravestein commenced arbitration proceedings on 27 October 2021. The parties agreed that the arbitrator should first decide whether or not a valid Notice of Dissatisfaction had been served. It was not in dispute that, if Ravestein had not given a valid Notice of Dissatisfaction, the adjudicator's decision had become final and binding and could not be the subject of a further dispute resolution process. The arbitrator held that the April email was not a valid NOD, in that it did not contest the underlying decision. The NOD was:

"clearly a reference to the jurisdictional challenge. Nothing is said as to the correctness of the Decision."

Ravestein issued an application for...