CN Associates V Holbeton Ltd

Propositions in relation to the parties conferring jurisdiction on the adjudicator to decide his own jurisdiction
 

 

CN ASSOCIATES V HOLBETON LTD
Technology and Construction Court
Akenhead J
26 January 2011

 

Akenhead J formulated some further propositions to those he set out in Allied P & L v Paradigm Housing Group (2009) in relation to the parties conferring jurisdiction on the adjudicator to decide his own jurisdiction. He began by stating that if a party did not effectively reserve its position on a jurisdiction issue of which it had actual or constructive knowledge, it could not raise it as an effective objection in court enforcement proceedings. If there arose an issue as to whether the parties had or were to be taken to have agreed that the adjudicator was to have jurisdiction to decide his or her own jurisdiction, it was necessary to determine whether there was by words or conduct or both an express or implied agreement to that effect. Even if there was such an agreement, the adjudicator had to adjudicate upon it and go further than simply enquiring into his or her jurisdiction and reaching a provisional view. If the adjudicator did not adjudicate upon jurisdiction which the parties had by agreement conferred on him or her, there would be no binding decision on that issue and the court might then have to resolve the issue.
 
Akenhead then went on to apply the above propositions in the court enforcement proceedings in relation to the alleged reservation of jurisdiction made by the defendant in the adjudication in which an award was made against it. He held that the defendant effectively reserved its position in the adjudication as to the adjudicator’s jurisdiction by the words it used in its response and rejoinder. The defendant asserted that the adjudicator did not have jurisdiction for a number of reasons, including there being no contract between it and the claimant. It was necessary to judge objectively how the words used by the defendant would or should have been understood. There was no doubt that the defendant was saying unequivocally to the adjudicator and to the claimant that it believed, rightly or wrongly, that the adjudicator did not have jurisdiction. It was therefore unnecessary to consider whether the parties agreed to give to the adjudicator jurisdiction to decide his own jurisdiction
 
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