The Court of Appeal recently refused permission to appeal against a judgement that rendered an adjudicator’s decision invalid because he lacked jurisdiction. Briefly:
The Contractor had, in its adjudication notice, sought to refer four disputes in the same reference. The Scheme for Construction Contracts applied and (like many other rules) only allows one dispute to be referred at a time, unless the parties agree otherwise.
The Court held that the disputes were independent and unrelated. Without the Employer’s consent, the adjudicator had no jurisdiction to determine more than one dispute.
While the Employer did not consent, it did not expressly complain either. Instead it generally reserved its right to take any further points as to the adjudicator’s jurisdiction. This was sufficiently wide to enable the Employer to rely successfully on the multiple disputes defence when the decision came to be enforced.
This case is interesting because:
- It bucks the trend of the courts enforcing adjudicators’ decisions when defendants rely only on technical points and promotes the raising of general jurisdictional reservations by responding parties.
- The Court rejected the submission that the adjudicator should have undertaken an inquisitorial role of examining all of the facts to establish whether there was a link between the disputes. The adjudicator's role was said to be restricted to examining the dispute as defined in the adjudication notice.
- 3. Previously the multiple disputes defence had met with limited success. Responding parties are likelier now to say that a global dispute is really a number of discrete disputes, thus derailing the adjudication. The lesson for referring parties is to define "the dispute" in broad terms in adjudication notices, to minimise arguments that there are multiple disputes.
Reference: Bothma v Mayhaven Healthcare Limited [2007] EWCA Civ 527
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This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 13/06/2007.
