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When Actual Receipt Does Not Count
When I was directed to Lafarge (Aggregates) Ltd -v- London Borough of Newham, (it is in www.bailii.org but in the Commercial Court section rather than TCC) I thought that I was on to a good one. It looked as though the case went from adjudication to arbitration to litigation.
However, when I started to read to the judgment in full, I realised that this was not the case and, in fact, the litigation was entirely about challenging the jurisdiction of the arbitrator under s.67(1)(a) of the Arbitration Act, the arbitrator having ruled that he did have substantive jurisdiction.
The contract terms included a provision that notices were deemed to be received two working days after they had been posted or left at the principal place of business. The arbitration notice, when there had been a prior adjudication on the same matter, had to be served within three months of the 'giving of the decision'.
The salient facts were that the adjudicator sent his decision to the parties by e-mail (therefore 'unsigned') on 13th August 2004 and posted it the same day. Newham did not receive it until the 17th. Newham sent its notice of arbitration, by recorder delivery mail, on Thursday 11th November. The notice was actually received by Lafarge on 12th November. All OK says I - where is the problem, the notice was actually served within the three months. Lafarge's case was that the arbitration notice was served outside the three month period and the arbitrator's appointment was therefore invalid.
The first issue was establishing the date of 'giving the decision'. I hope that no one has a problem that the adjudicator's decision was validly 'given'? by e-mail on 13th August.
The main issue was therefore the date on which the arbitration notice was served. I had no problem - it had actually been received by Lafarge on 12th November. What the judge had to decide what was the effect of the 'deemed to be received' provision. I have always believed that actual earlier receipt trumps a deemed provision. The judge, looking at the logic, asked why have a deemed receipt provision applying even to hand delivery to the proper address. To make sense of the hand delivery situation the deemed provision must always apply, regardless of whether actual delivery is earlier or later. Of course, this may not apply if the 'deemed'? provision only applies to notices sent by post. Therefore, the arbitration notice, posted on 11th November was received on Saturday 13th November.
Suddenly, the relevance of 'working day' looms. Notwithstanding that there were provisions within the contract for weekend working, this only applied to the site and the judge found that Saturday is not a working day. The upshot was that the arbitration notice, deemed to be received two working days after posting was received on Monday 15th November. To be valid, it would have to be received by 13th!
I hope you agree that the logic of the judge (Mr Justice Cooke) was impeccable and, although it looks wrong on the face of it, the same logic should be applied elsewhere when the same contract provisions occur.
Peter Horne