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Despite various jurisdictional challenges made, the TCC has recently granted summary judgment [1] enforcing two adjudicator’s decisions in the same matter, one concerning the substantive dispute, and the second on costs.

There are various challenges which can be made to an adjudicator’s jurisdiction, both during the adjudication itself and in any enforcement proceedings. However, the courts will only decline to enforce a decision where it is clear that the adjudicator had no jurisdiction.

An adjudicator should satisfy himself that he has jurisdiction to determine a dispute, however, an adjudicator does not in fact have the power to make a binding decision on his own jurisdiction. That said, parties may agree that the adjudicator does in fact have jurisdiction.

There are various grounds to challenge jurisdiction and these include:

  1. That there is no concluded contract or the contract is not a construction contract;
  2. If the contract was entered into before 1 October 2011, that the contract was not in writing;
  3. That a dispute has not crystallised, or that the dispute referred to adjudication is different from the dispute that has crystallised;
  4. The dispute referred is the same or substantially the same as a dispute already decided by an adjudicator;
  5. That the contractual adjudication procedure does not comply with the Construction Act 1996 [2] (right to refer a dispute to adjudication).

The parties in the present case had entered into a contract [3] and the defendant initially reserved its rights in relation to jurisdiction on receipt of the Notice of Intention to Refer but proceeded to participate in the adjudication. On receipt of the Decision, it disputed its validity on the ground that the relevant clause in the contract did not comply [2] with the Construction Act 1996. As the adjudicator was appointed under the contractual provisions rather than the scheme, the defendant argued that the adjudicator had no jurisdiction to decide the dispute.

The defendant also argued that the adjudicator had no jurisdiction as no dispute had crystallised, but later abandoned this argument.

The Judge held that a number of distractions and sub-issues had been raised by the defendant in this action and that it was an example of a party ‘scrabbling around’ trying to find reasons not to comply with an adjudicator’s decision. It held that, reading the adjudication clause in the contract as a whole, it did comply [2].

It noted that the defendant’s widespread and varied attempts to raise jurisdictional objections was not how the process of adjudication was intended to operate. He said the challenges raised were highly technical and wholly hypothetical.

Accordingly, he granted judgment in favour of the Claimant.

This case provides a warning that despite the various challenges a party can raise to attempt to resist enforcement of an adjudicator’s decision, they are rarely successful. Parties should be aware of pursuing a frivolous challenge simply to avoid or delay paying the amount of an adjudicator’s decision.

For more information, email blogs@gateleyplc.com.

[1] Science and Technology Facilities Council and MW High Tech Projects UK Limited

[2 ] Section 108 of The Construction Act 1996

[3] Based on the GC Works/1 Single Stage Design and build (1998) General Conditions with Amendment 1(2000)


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.