Harris Calnan Construction Co Ltd V Ridgewood (Kensington) Ltd

The employer's jurisdictional challenge based on there being no contract in writing could not succeed in the court enforcement proceedings on the basis that the employer failed to reserve its position in the event of the adjudicator rejecting the challenge
 
HARRIS CALNAN CONSTRUCTION CO LTD V RIDGEWOOD (KENSINGTON) LTD

Technology and Construction Court
His Honour Judge Peter Coulson QC
15 November 2007
 
This case provided Judge Coulson with the opportunity of reviewing the law with regard to the making of challenges to the adjudicator's jurisdiction before the adjudicator. In particular the judge had to decide whether a defendant agreeing to the adjudicator ruling on his jurisdiction (when the judge decided that he did have jurisdiction) meant that the defendant could not make the same jurisdictional before the court in court enforcement proceedings. In this case the employer's jurisdictional challenge was based on there being no contract in writing. The employer raised that challenge before the adjudicator who decided that the contract was in writing with the result that he did have jurisdiction. However, the employer did not state at the time of the adjudication that it reserved its position in this connection in the event of the ruling that he did have jurisdiction. Judge Coulson held that this failure to reserve its position meant that the employer could no raise the same challenge in the court enforcement proceedings as its defence to the contractor enforcing the adjudicator's decision in its favour by way of summary judgment.
 
Judge Coulson stated that a party with a jurisdictional challenge in adjudication had the clear choice of agreeing that the adjudicator should decide the question of jurisdiction (and to be bound by that decision) or to reserve his right to argue that the adjudicator did not have jurisdiction to reach that decision (whatever decision the adjudicator made). Whilst Judge Bowsher in Whiteways Contractors v Impresa Castelli Construction (2000) held that the adjudicator's decision as to his jurisdiction was binding on the ground that it was part of his overall decision, this decision, along with a number of the earlier decisions dealing with challenges to the adjudicator's jurisdiction should be treated with some caution. The better view was that (a) the court had to decide whether the parties had agreed to be bound by the adjudicator's decision on his jurisdiction (with the result that any decision by the adjudicator that he had jurisdiction was binding) and (b) the adjudicator's decision on his jurisdiction was not binding if the challenge reserved his position by making it clear that he did not agree to be bound by the adjudicator's decision on his jurisdiction (notwithstanding that he was content for the adjudicator to express his view).
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