KNS Industrial Services (Birmingham) Limited -v- Sindall Limited
The sub-contractor's contention that it was entitled to a far greater sum than the amount found by the adjudicator to be due should be dismissed
14 July, 2000
A dispute was referred to adjudication by the sub-contractor. The contractor paid the sum awarded by the adjudicator to the sub-contractor. The sub-contractor contended that the adjudicator had no jurisdiction to deduct a sum for non-compliant work. The sub-contractor further contended that it should have been awarded a substantially greater sum. The sub-contractor commenced court proceedings and sought to enforce by way of its application for summary judgement its version of what the adjudicator's decision should have been on the basis that he had no jurisdiction to reduce the amount of its interim payment application in the way he did. The contractor contended that the action and the application for summary judgement were misconceived and made a counter application for summary judgement on the ground that the sub-contractor's claims were bound to fail. Judge LLoyd agreed with the contractor. It was not the case that the adjudicator acted without jurisdiction in deducting sums from the amount of the sub-contractor's interim payment application in respect of non-compliant work should be rejected. In particular the sub-contractor's submission that there could be a valid severance of the authorised from the unauthorised parts of the adjudicator's decision should be rejected insofar as (1) The dispute referred included any ground open to the contractor which would justify it in not paying the sub-contractor. (2) Whilst there might be instances where an adjudicator's jurisdiction was in question and authorised parts could properly be saved by severing them from unauthorised parts, there was only one dispute in the instant case even though it embraced a number of claims or issues (3) The sub-contractor had to accept the whole of the decision and it was wrong to dismantle and then reconstruct it in the way suggested by the sub-contractor since such a process would intrude on the adjudicator's area of decision-making and (4) Even if an adjudicator made mistakes, it did not follow that they fell outside his jurisdiction. Advice Note Whilst there might be cases where an unauthorised part of a decision might be severed from the authorised part (so that only the authorised part is enforced by the court), in general it is wrong to attempt to dismantle and reconstruct a decision in such a way.