Amec Capital Projects Ltd v Whitefriars City Estates Ltd (Part I)

The dispute as to whether the adjudicator actually appointed was the correct person or should have been the person named in the (partially completed) appendix to the schedule of amendments to JCT 98 WCD was one which fell within the exception in article 6A

Technology and Construction Court
His Honour Judge Humphrey LLoyd QC
19 September 2003
The proposed form of contract was JCT 98 With Contractor's Design and provided that the adjudicator would be a named person. The contractor referred a dispute to adjudication and a decision was made in its favour. The contractor brought court proceedings to enforce the decision. The employer resisted enforcement on the ground that there was a dispute between the parties as to whether the correct adjudicator had been appointed. The employer contended that the adjudicator to be appointed was the person named in the contract (and not the person who made the decision). The employer applied pursuant to section 9 of the Arbitration Act 1996 for this dispute to be referred to arbitration.
Judge LLoyd held that this dispute was one which fell within the exception in article 6A of JCT 98. Article 6A provided that any dispute arising out of or in connection with the contract, except in connection with the enforcement of any decision of an adjudicator, was to be referred to arbitration. If the wrong adjudicator was appointed, if the adjudicator exceeded his jurisdiction or if the adjudicator failed to follow the rules of natural justice, then the decision was not authorised. It was not possible to believe that the wording of the exception was intended to exclude such a jurisdictional dispute and therefore to require an arbitrator to decide whether the adjudicator was properly authorised to reach a decision. Article 6A was concerned to ensure that matters relating to the enforcement of an adjudicator's decision should be severed from arbitration, which would be concerned with the underlying dispute. Matters preliminary to the substantive dispute, ie whether the adjudicator made an enforceable decision, were not matters for the arbitrator and the problems that could arise in terms of the time and expense in an arbitrator dealing with such a matter were better dealt with by the courts.
Advice Note
The courts will be reluctant to allow an arbitrator to decide a jurisdictional dispute such as whether the adjudicator was properly appointed. If an arbitrator were to decide such a dispute, the enforcement of adjudicators' decisions would take much more time and would be much more expensive.