AT Stannard Ltd v Tobutt & Anor

Mr Justice Akenhead:

The Court is here concerned with a relatively simple application for summary judgment for the enforcement of an adjudicator’s decision which has only been complicated by very late applications by the Defendants to submit further evidence and for an adjournment.

The Background

Mr James Tobutt and his brother Mr Thomas Tobutt, the Defendants, at least until about 2009 or 2010 traded as a firm, JT Tarmac ("the Firm"). It seems that they then incorporated their business into a limited company, JT Tarmac Ltd ("the Company"). From 2007 to 2009 the Firm engaged A.T. Stannard Limited ("Stannard"), the Claimant, to carry out works of repair to carriageways and footpaths following works undertaken by or on behalf of Thames Water. I was told during the hearing (although there is no direct evidence of this) that from about May 2009 the Firm acted for about a year in anticipation that it would change its status to operate as a limited company, albeit that the Company was not incorporated until February 2010. After May 2009 it seems therefore that Stannard was retained by the Firm on behalf of the Company (yet to be formed) and after it was formed by the Company on at least two projects, the later one being one in which the main contractor was Clancy Docwra.

Stannard claimed that it remained entitled to the payment of retention money due to it in respect of the contract between it and the Firm for the contract works which it had carried out up to May 2009; the sum involved was £41,222.69 plus VAT. History does not particularly relate why Stannard waited until 2014 to institute adjudication proceedings in relation to this retention money. By this stage the Firm was represented by a firm, ISA Management Consultants, which was essentially Mr Ian Scott who happens to live in Yalding in Kent, which is a low lying area prone historically to flooding.

The Adjudication

On 13 June 2014, Stannard served its Notice of Adjudication on the Firm through Mr Scott, albeit that, due to flooding damage to his property, Mr Scott may well not have received it until some days later. On 16 June 2014, the RICS appointed Mr R Ames as adjudicator. The Referral Notice was served on 16 June 2014, again it is possible that it did not get to Mr Scott on that day. The Firm was given initially until 23 June 2014 to submit a Response, later extended to 30 June 2014. In fact the Firm did not actually ever submit a Response but Mr Scott wrote to the adjudicator on 25 June 2014