J T Mackley & Company Limited V Gosport Marina Limited

The adjudicator's errors of having based his decision on the wrong conditions of sub-contract went to the root of his jurisdiction and meant that his decision was a nullity
Disputes arose between the contractor and the sub-contractor under two sub-contracts which incorporated different conditions of contract. The sub-contractor referred these disputes to adjudication and the same adjudicator made decision awarding the sub-contractor specified sums of money. The sub-contractor took issue with the validity of one of the decisions on the ground that the adjudicator, in giving his reasons for his decision, made it clear that he had based his decision on the terms of the JCT Works Contract whereas the sub-contract in fact incorporated DOM/2. In subsequent correspondence the adjudicator accepted that he had referred to the wrong standard form of sub-contract but stated that he was satisfied that this error was of no material relevance to the substance of the decision. The issue for determination was whether the adjudicator had acted without jurisdiction. Judge Thornton held that the adjudicator had made his decision by reference to the wrong conditions of sub-contract and by either not having considered the other contractual documentation or having considered the wrong documentation. By so doing the adjudicator made errors which went to the root of his jurisdiction to decide the referred dispute under the actual sub-contract. Furthermore these errors were not correctable under his implied power to correct accidental slips and were not merely errors of law within his jurisdiction. This meant that the adjudicator had asked the "wrong question" with the result that his decision was a nullity irrespective of what decision might have resulted from the adjudicator having addressed the question referred. In addition it would have been inappropriate for the court to embark on its own determination of whether or not the adjudicator could or would have reached the same conclusion had the adjudicator asked the correct question under the correct contract by the application of the correct contractual documentation where he asked the wrong question and thereby embarked on an exercise for which he had no jurisdiction with the result that the decision was in any event a nullity. Advice Note An adjudicator's decision is a nullity where he makes his decision based on the wrong conditions of contract as a result of not having considered the other contractual documentation. Such a decision will have been made by the adjudicator "asking the wrong question".