Bickerton Construction Ltd v Temple Windows Ltd
The adjudicator did not have the jurisdiction to take the contractor's valuation of the sub-contract works as the starting point for his calculations
26 June, 2001
The contractor served a notice of adjudication which stated that (1) The sub-contractor's work was incomplete and defective (2) The sub-contractor had applied for a specified gross sum of which the contractor had paid a specific sum and (3) The contractor had incurred additional costs in completing the sub-contract works and in carrying out remedial work which exceeded the sum it had withheld. The contractor sought the recovery of these costs. The adjudicator came to his decision by (1) Taking as his starting point the sum "otherwise due" to the sub-contractor as being the contractor's valuation of the sub-contract works (2) Subtracting from the contractor's valuation the sums previously paid and the costs incurred by the contractor by reason of deficiencies in the sub-contractor's work. He concluded that the sub-contractor should pay a specified sum. The sub-contractor refused to pay and the contractor began court enforcement proceedings. Judge Kirkham held that the decision should not be enforced. This was on the basis that the adjudicator did not have the jurisdiction to take the contractor's valuation of the sub-contract works (rather than the sub-contractor's final account figure) as the starting point for his calculation of the sum be found to be due where the contractor had expressly rejected the adjudicator's invitation for the inclusion of the issue of the sub-contractor's final account in the adjudication. The value of the sub-contract works was never agreed insofar as the sub-contractor put their true valuation in issue, albeit obliquely, in its response to the contractor's notice of adjudication by its contention as to the sum due to the contractor which, as a matter of simple arithmetic, must have been greater than the contractor's valuation. In particular there had to be a starting figure (ie the value of the sub-contract works) in order for the adjudicator to have determined that an amount was due to the contractor but the adjudicator had no jurisdiction to take account of the contractor's starting figure in the light of the contractor's rejection of the adjudicator's invitation for his jurisdiction to be broadened by the inclusion of such a starting figure in the adjudication. Advice Note It is vital that a claimant should ensure that the wording of its notice of adjudication should correctly reflect the nature of the dispute advanced before the adjudicator since the adjudicator's jurisdiction is derived from the contents of that notice.