Thomas-Fredric's (Construction) Ltd v Wilson

The decision should not be enforced where the defendant employer company's owner challenged the adjudicator's jurisdiction from the outset on the basis that the defendant did not ask the adjudicator to make a ruling on the jurisdictional issue and that his ruling on the issue was in any event plainly wrong

Court of Appeal
Simon Brown, Judge and Jonathan Parker LJJ
21 October 2003
The contractor contended that an alleged oral agreement was made between it and the employer company’s owner. As soon as the contractor referred a dispute arising out of this alleged agreement to adjudication, the employer company owner made a jurisdictional challenge on the ground that the correct defendant was the employer company. Despite this challenge the adjudicator ruled that the correct defendant was the employer company’s owner and made a substantive decision in the contractor’s favour. The contractor brought court proceedings to enforce the decision.
Judge Gilliland at first instance held that that the evidence “almost entirely substantially” pointed to the employer company’s owner being the contracting party and ordered summary judgment in the contractor’s favour. The Court of Appeal disagreed by holding that as a matter of fact the employer company’s owner did not accept the adjudicator’s ruling that he was the contracting party (and was therefore the correct defendant in the adjudication).
The Court of Appeal held that it was only if the defendant advanced a properly arguable jurisdictional objection with a realistic prospect of succeeding that he could hope to resist the summary enforcement of an adjudicator’s award. If a defendant to enforcement proceedings submitted to the adjudicator’s jurisdiction in the full sense of having agreed not only that the adjudicator should rule on the issue of jurisdiction but also that he would be bound by that ruling, he was liable to enforcement on the award even where the adjudicator was plainly wrong on the issue. Even if such a defendant did not submit to the adjudicator’s jurisdiction in that full sense, he was still liable to such enforcement where the adjudicator’s jurisdictional ruling was plainly right. In the instant case the adjudicator was plainly wrong in his finding as to the correct defendant.
Advice Note
If a defendant to adjudication proceedings objects to the adjudicator’s jurisdiction, it must maintain that challenge and refuse to accept any ruling by the adjudicator in this connection. If it does so, it is then up to the court in any enforcement proceedings to decide whether that challenge was correct.