PT Building Services Ltd V Rok Build Ltd
The contractor's statements to the adjudicator in the second adjudication that the decision in the first adjudication was valid and precluded him from proceeding meant that it could not seek to challenge the validity of the decision
8 December, 2008
PT BUILDING SERVICES LTD V ROK BUILD LTD
Technology and Construction Court
8 December 2008
8 December 2008
The contractor in the adjudication begun by the sub-contractor maintained its jurisdictional challenges on a number of grounds and reserved its position to maintain that contention subsequently but participated in the adjudication process without prejudice to that position. The adjudicator awarded the sub-contractor a specified sum in respect of its works and directed the contractor to pay its fees and expenses. Whilst the contractor refused to pay the sum awarded in respect if its works, it did pay the adjudicator's fees and expenses. The contractor's refusal to pay the sum awarded and its jurisdictional challenges led the sub-contractor to commence a second adjudication. The contractor wrote to the adjudicator in the second adjudication and stated that whilst the decision in the first adjudication was unenforceable, the dispute referred in the second adjudication was the same as the dispute in the first with the result that the adjudicator would have no jurisdiction in the second adjudication. The adjudicator in the second adjudication accepted this argument and resigned his appointment. The sub-contractor brought court enforcement proceedings in respect of the decision in the first adjudication. The sub-contractor contended that the contractor took the benefit of the adjudicator's decision in the first adjudication by using it to persuade the second adjudicator to resign and paid the adjudicator's fees. In consequence the contractor could not now assert that the decision was not valid and binding.
Ramsey J accepted the sub-contractor's contention. The contractor's statements to the adjudicator in the second adjudication that the decision in the first adjudication was valid and precluded him from proceeding meant that it could not seek to challenge the validity of the decision. The contractor's assertion in its communications with the second adjudicator that there was a valid adjudication decision arising from the first adjudication which precluded him from proceeding meant that it elected to treat the first decision as valid. The decision of second adjudicator not to proceed with the second adjudication was a clear benefit obtained by the contractor in so relying on the first decision. The payment by the contractor of the fees and expenses of the adjudicator in the first adjudication meant that it elected to treat the adjudicator's decision on those fees and expenses as being a valid decision. Whilst there was some force in the contractor's argument that it was difficult to characterise that payment as amounting to it taking a benefit, the taking of a benefit was sufficient but not necessary for there to be an election.