Cleveland Bridge (Uk) Ltd v Whessoe-Volker Stevin Joint Venture

The part of the adjudicator's decision in respect of which she did have jurisdiction could not be severed from the part in respect of which she did not have jurisdiciton with the result that the decision in the sub-contractor's favour should not be enforced
 

 

CLEVELAND BRIDGE (UK) LTD V WHESSOE-VOLKER STEVIN JOINT VENTURE
Technology and Construction Court
Ramsey J
13 May 2010
 
The adjudicator in the light of section 104(5) of the Construction Act and the terms of the sub-contractor’s notices of adjudication and referral did not have jurisdiction to deal with the whole of the single dispute referred to her but did have jurisdiction in relation to that part of the dispute which related to construction operations under the sub-contract, namely those operations which were not excluded by section 105(2)(c)(ii). If the adjudicator had made a decision on the whole dispute but had also made a decision which dealt only with the part of the dispute which was within her jurisdiction the decision on the whole dispute would not be enforceable or valid but there would be a valid decision on the part of the dispute which was within her jurisdiction. However, the adjudicator’s decision was on a single dispute with the results that the parties’ agreement under the implied term in paragraph 23(2) of the Scheme for Construction Contracts to comply with a decision until the dispute was finally determined did not apply to the decision and the court could not and should not intervene to say what the adjudicator might have found to be the value of the work relating to the element of the sub-contract within her jurisdiction. The parties only agreed to valid decisions being binding and did not agree that an adjudicator's findings on issues leading up to that binding decision were themselves individually binding and enforceable. If the court had intervened to say what the adjudicator might have found to be the value of the work relating to the element of the sub-contract within her jurisdiction, the effect would have been to connect the adjudicator’s decision on the issue of the effect of the settlement agreement with a decision by the court on how the specified sum awarded should be divided between the parts within and outside of the adjudicator's jurisdiction and to produce a decision partly made by the adjudicator and partly made by the court. The court’s role was to enforce the decision in accordance with the term implied into the sub-contract in relation to construction operations but was not to act by opening up, reviewing and revising an adjudicator's decision in enforcement proceedings where part of that decision is made without jurisdiction and making a revised enforceable decision.
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