Nickleby Fm Ltd V Somerfield Stores Ltd
Technology and Construction Court
30 July 2010
The employer was wrong to contend that the contractor in seeking to enforce the adjudicator’s decision was advancing a different case on jurisdiction to that it advanced in the adjudication, had elected to advance one case in adjudication, was bound by that election; and should not be entitled to “approbate and reprobate” its earlier case before the adjudicator by now being permitted to advance a different case in the court enforcement proceedings.
Akenhead J dismissed this contention. He stated that there could be no effective challenge to the adjudicator’s jurisdiction because it was clear from the common ground between the parties that he had actual jurisdiction and that if all the relevant information had been put before the adjudicator, it was inevitable that he would have decided that he did have jurisdiction. It could not be said that the contractor was in any material way advancing a case on jurisdiction before the court which was materially or prejudicially different from that which it advanced in the adjudication. The reality was that the adjudicator, whether he knew of all the relevant information or not when he made his non-binding decision that he had jurisdiction, did have jurisdiction. It was common ground in the court proceedings that there was agreement in or evidenced in writing by which the contract was extended subject to 14 week notice of termination and the gain share arrangements were to be amended during the extension period, namely in accordance with the e-mail exchange. The primary information in the form of the e-mail exchange which established the agreement in writing in relation to the amendment of the gain share arrangements was not placed before the adjudicator by reason of the oversight of both parties. If that e-mail exchange had been placed before the adjudicator, he would inevitably have come to the view that not only were the gain share arrangements varied by agreement but also that that variation was evidenced in writing.