Case No. HT-08-331

52.As I have said, Part I of the Scheme applies to the contract in this case because it does not contain an adjudication provision. The Scheme requires, at paragraph 7(2) of Part I, that:“A referral notice shall be accompanied by copies of or relevant extracts from the construction contract and such other documents as the referring party intends to rely upon.”53.Mr Lee submits that the failure by PTB to provide copies of the relevant construction contract with the referral notice means that PTB was in breach of the procedure under the scheme. He refers me to the decision of His Honour Judge Coulson, Q.C., as he then was, in Hart v. Fidler [2007] BLR 30, where he held that a failure of a party to serve its referral notice within seven days of the notice of adjudication, as required by paragraph 7(1) of part I of the Scheme, deprived the adjudicator of jurisdiction. Mr Lee submits that this must also apply to a breach of paragraph 7(2). Mr Stansfield submits that a failure to provide the adjudicator with the relevant documents until, it seems, 29 August 2008, when the referral notice was served on 28 August 2008, should not be held to deprive the adjudicator of jurisdiction. He observes that often there may be a dispute as to what documents form the agreement and in such cases it could be argued that, if not all the documents had been submitted with the referral notice, the adjudicator would lack jurisdiction. If that were to be so, he submits, then it would give rise to an unreasonable result which could not have been intended by the terms of the scheme. 54.In approaching this issue, it is to be recalled that, where the scheme applies, it does so as an implied term of the construction contract - see s.114(4) of the 1996 Act. The consequence of a party's failure to comply with the terms of a contract will generally be a breach of contract, which may have a number of consequences depending on the nature of the term and the breach. Under the 1996 Act, there are a number of terms which are fundamental to the process of adjudication and which are set out in s.108 of the 1996 Act. In my judgment, the central purpose of the scheme is to incorporate those fundamental provisions which, when absent, lead to the scheme being imposed as an implied term. The provision in paragraph 7(1) of Part 1 of the Scheme, which was considered in Hart v. Fidler, is derived from s.108(2)(b) of the Act. That, it seems to me, makes paragraph 7(1) of the scheme one of the fundamental provisions in the process of adjudication. On that basis, the decision that a late referral under paragraph 7(1) of the scheme took the process outside the scheme so as to make a decision unenforceable can be distinguished from a breach of paragraph 7(2) which refers to an associated procedural requirement. 55.I consider that it is undesirable that every breach of the terms of the scheme, no matter how trivial, should be seized upon to impeach the process of adjudication. To do so would increase the tendency of parties to take a fine tooth-comb to every aspect of the adjudication in the hope of finding some breach of the Scheme on which to impeach an otherwise valid adjudication decision. I do not consider that that was either intended or the natural effect of a failure to comply with the Scheme. There may, of course, be cases where the documents included with the referral notice are so deficient that it effects the validity of the adjudication process. However, I do not consider that a failure to include the relevant construction contract until a day later can do so or does so on the facts of this case. Nor do I consider that a failure to include the construction contract can be said to amount to such a serious breach of the rules of natural justice that the decision should not be enforced. There is nothing obviously unfair in the documents relied on in relation to the construction contract being received by the adjudicator later than the referral notice: see Carillion v. Devonport [2006] BLR 15 at paragraph 85.