Last year the case of Parkwood Leisure Ltd v Laing O'Rourke Wales and West Ltd [2013] EWHC 2665 (TCC) (see our previous article on this here) raised the idea that deeds of warranty could be construed as construction contracts for the purposes of the Housing Grants, Construction and Regeneration Act 1996 (as amended) and accordingly the parties had the right to refer disputes to adjudication. Commentaries at the time debated the application of the principle to third party rights.
In the case of Hurley Palmer Flatt Limited v Barclays Bank PLC [2014] EWCA 3042 (TCC) ("Barclays"), Barclays as a third party to the appointment sought to refer a dispute to adjudication. The Court concluded that they were not entitled to do so interpreting the appointment as entitling the third party to rely upon those terms of the appointment relating to the consultant's liability to the client and not the procedural rights, such as the right to adjudicate. The Court accordingly declared that Barclays were not entitled to commence adjudication proceedings and that accordingly the adjudicator did not have jurisdiction to determine the dispute.
As with the Parkwood decision, the key message from this case appears to be the importance of clear drafting. If the intention is to give a third party the procedural right to adjudicate disputes then this needs to be expressly provided within the appointment.
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