Ecovision Systems Ltd v Vinci Construction Ltd (TCC - 11.3.2015)

The adjudicator does not have the power to determine which adjudication rules apply where it is accepted that the dispute referred arose under a construction contract and is therefore subject to adjudication under the Construction Act

Technology and Construction Court
His Honour Judge Mark Havelock-Allan QC


11th March 2015

Judge Havelock-Allan stated that a notice of adjudication or purported nomination made under a purported contractual provision or legislative power which, on a correct analysis, does not apply is invalid. Even if it is common ground that a construction contract exists under which there is a right to claim adjudication, the adjudicator has no power to determine what rules of adjudication apply if there is a dispute about those rules and the dispute affects (by making a material difference as to) (i) The procedure for appointment (ii) The procedure to be followed in the adjudication or (iii) The status of the decision. An adjudicator has no jurisdiction to determine whether he has jurisdiction, even on a temporarily enforceable basis.
The adjudicator may only enquire into his jurisdiction and make a determination with temporarily binding effect if (i) His conclusion coincides with the referring party’s contentions as to the contractual terms and (ii) The referring party is right in those conclusions. This is not truly a concession about jurisdiction and is more a pragmatic acknowledgment that if the adjudicator purports to decide what rules govern his appointment and the conduct of the adjudication, his decision will be enforced if his decision turns out to be correct. The responding party will not be able to establish that the adjudicator in fact lacked jurisdiction by the standard of a real prospect of success when seeking to resist summary judgment at the enforcement stage or on a final basis in the context of a Part 8 claim.
A choice between two sets of adjudication provisions will amount to such a determination if the choice makes a material difference as to (i) How he should be appointed (ii) What rules he is obliged to follow or (iii) The effect of his decision. There is no rule that the court will not interfere with an adjudicator's conclusion as to a matter affecting his jurisdiction when considering whether to enforce a decision by summary judgment. The choice of adjudicator nominating body in the instant case lay between (i) The President of the RICS or the chairman of TeCSA. It was possible but improbable that the same adjudicator would have been nominated by the chairman of TeCSA.