Christiani & Nielsen Limited -v- The Lowry Centre Development Company Limited
The parties did not make an ad hoc appointment for the adjudicator to determine his jurisdiction and even if they did, this did not necessarily mean that the adjudicator's determination could not be reviewed by the court
29 June, 2000
The dispute referred concerned the employer's entitlement to deduct liquidated damages. The employer challenged the adjudicator's jurisdiction on the basis that the contract had been entered into before the date on which the Construction Act came into force. The employer's solicitors agreed a procedure to enable the parties to put before the adjudicator their jurisdictional submissions. The adjudicator determined that the parties had agreed that there should be an ad hoc appointment for him to decide whether he had jurisdiction. He further decided that he did have jurisdiction and awarded the contractor some of the liquidated damages deducted by the employer. The employer refused to make payment and the contractor brought court proceedings to enforce the decision. Judge Thornton stated that it was trite law that an adjudicator has no jurisdiction to determine his own jurisdiction. An adjudicator faced with a jurisdictional challenge can ignore the challenge and proceed as if he has jurisdiction or can investigate his jurisdiction. If he investigates his jurisdiction and concludes that he has jurisdiction, he should proceed with the adjudication. If he concludes that he does not have jurisdiction, he should decline to act further. It is prudent and desirable to comply with his statutory duty of impartiality for an adjudicator faced with such a challenge to investigate his jurisdiction and reach his non-binding conclusion. The judge agreed that there had been no ad hoc appointment for the adjudicator to determine whether he had jurisdiction. This was because the employer's solicitors did no more than to agree a procedure which would enable the parties to put before the adjudicator their jurisdictional submissions. However, even if the parties had made such an ad hoc agreement, it did not necessarily follow that the adjudicator's determination as to his jurisdiction could not be reviewed by the court. This was on the basis that the jurisdictional dispute would not have arisen under a construction contract with the result that it could not be said that the adjudicator had made a binding determination on the dispute. Advice Note An adjudicator can only properly determine whether he has jurisdiction if the parties agree that he should do so. However, whether such a determination is binding depends on the nature of the authority conferred on the adjudicator by the parties.