Ravestein B.V. v Trant Engineering Ltd

• Published date: 22 February 2023
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Fenwick Elliott LLP
• Author: Mr Ted Lowery

2023] EWHC 11 (TCC)

Before Her Honour Judge Kelly sitting as a Judge of the High Court
In the Technology and Construction Court
Judgment delivered 9 January 2023

The facts

Under a subcontract, dated 14 September 2010, based on an amended version of the NEC3 form incorporating Option A and dispute resolution Option W2, Trant engaged Ravestein to carry out certain engineering works. 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 notified the other that it was dissatisfied with a matter decided by the adjudicator and that it intended to refer that matter to the tribunal.

During 2021, Trant commenced an adjudication claiming damages for defective works. In a decision dated 11 April 2021, the adjudicator (appointed by the Institution of Civil Engineers) ordered Ravestein to pay Trant some £454,083.09 plus VAT. 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 they did not accept the adjudicator's jurisdiction nor recognise the ruling. In the second e-mail, Ravestein asserted that the adjudicator was not entitled to make any rulings and stated that, if he did not withdraw the ruling, their solicitor would file a request to the ICE to reverse the ruling.

Ravestein did not make any payment but commenced arbitration proceedings on 27 October 2021 relying upon their second e-mail of 12 April 2021 as their notice of dissatisfaction. The parties agreed that the arbitrator should first decide whether or not a valid notice of dissatisfaction had been served. In an award dated 22 March 2022, the arbitrator determined that Ravestein's second e-mail did not comply with clauses W2.3(11) and W2.4(2) on the grounds that, on a reasonable reading, the e-mail concerned only the jurisdiction of the adjudicator and did not otherwise give notice of the matter within the decision that was disputed nor state that Ravestein intended to refer this matter to arbitration. Ravestein issued a court application for permission to appeal the arbitrator's award pursuant to section 69 of the 1996 Arbitration Act.

The issue

Should Ravestein be granted permission to appeal the arbitrator's award?

The decision

The judge considered Ravestein's application by reference to the four criteria set out in section 69(3) (a) – (d). She found that the first criterion was satisfied insofar as determination of...