Mecright Ltd v TA Morris Developments Ltd
The decision should not be enforced on the basis of the adjudicator not having jurisdiction by reason of the sub-contractor payment entitlement for its work and the contractor's wrongful determination of the sub-contract not being covered by the contractor's notice of adjudication
22 June, 2001
The court had to decide whether summary judgement should be ordered in favour of the sub-contractor (the defendant in the adjudication) to enforce that part of the adjudicator's decision awarding it a specified sum in respect of the value of the sub-contract works executed up to the time when the adjudicator found that the contractor (the claimant in the adjudication) had repudiated the sub-contract. Judge Seymour held that summary judgment should not be so ordered on the basis that the adjudicator did not have jurisdiction to award such a sum by reason of the issue of how much the sub-contractor was to be paid in respect of the value of the sub-contract works or the contractor's wrongful determination of the sub-contract not being covered by the contractor's notice of adjudication. Whilst it was correct that the jurisdiction of an adjudicator under the Scheme for Construction Contracts was derived from the notice of adjudication, paragraph 20 of the Scheme provided that the adjudicator could take into account any other matters which the parties agreed should be within the adjudication's scope and were under the contract and were considered by the adjudicator to be necessarily connected with the dispute. This meant that the adjudicator could at his discretion decide any matters which the parties agreed after the initial notice of adjudication should be within the adjudication's scope (but were not originally) and he considered were necessarily connected with the dispute (provided those matters arose under the contract). The dispute referred as described in the notice of adjudication was whether in the circumstances the contractor had been entitled to determine the sub-contract and if so, what sum the sub-contractor should pay to the contractor. If the contractor was found to have wrongfully determined the sub-contract, such a finding was unarguably a decision in relation to the dispute referred and would have meant that the sub-contractor was entitled to at least nominal damages. However, neither that sum nor any sum to which the sub-contractor might have been entitled as a result of the wrongful determination of the sub-contractor was covered by the notice of adjudication. Advice Note An adjudicator will be held to have acted without jurisdiction if his decision was not comprehended by the wording of the notice of adjudication.