Jerome Engineering Ltd v Lloyd Morris Electrical Ltd
The adjudicator's decision for the contractor to make an interim payment to the sub-contractor should be enforced by way of summary judgement despite the contractor's contention that the sub-contractor's notice of intention to refer did not contain any request for an interim payment
23 November, 2001
The sub-contract incorporated DOM/2. The issue for determination by the court was whether the adjudicator's decision that the contractor should make an interim payment of a specified sum to the sub-contractor should be enforced by way of summary judgement. Judge Cockcroft had to determine this issue taking into account the contractor's contention that the adjudicator had no jurisdiction to make the decision by reason of the sub-contractor's letter, which constituted its notice of intention to refer to adjudication, not containing any request for an interim payment with the results, according to the contractor, that the notice was defective and that that defect could not be cured by the subsequent referral to adjudication (or by any other document). Judge Cockcroft held that the interim payment awarded by the adjudicator should be enforced by way of summary judgement on the basis that there was a distinction between the ?dispute? referred and the ?relief? sought. Whilst the notice did not expressly set out the relief sought, it should be interpreted as one to refer to adjudication for the recovery of an interim award of money insofar as (1) at the time the notice was sent, the parties knew perfectly well that the sub-contractor was owed a sum of money which had been withheld without the contractor having issued any contractual notices of withholding payment and (2) The sub-contractor stated in its letter that the contractor had failed properly to make interim valuations and payments in accordance with the sub-contract. Even if there had been no attempt by the sub-contractor to specify the relief it sought in its notice of intention to refer expressly or by implication, both the notice and the referral were in full compliance with DOM/2 and the referral did not attempt to cut down, enlarge or alter the adjudicator's terms of reference. Advice Note Whilst a decision is not made with jurisdiction if its subject matter was not properly referred to adjudication, the courts will tend to take a more lenient view of the manner in which the relief sought is expressed in the notice of adjudication.