Galliford Try Construction Ltd v Michael Heal Associates Ltd

The adjudicator's decision should not be enforced by way of summary judgment on the basis that it was (also) held in the enforcement proceedings that the alleged "construction contract" upon which the adjudicator based his decision had not been entered into with the result that the decision was wrong

Technology and Construction Court
His Honour Judge Richard Seymour QC
1 December 2003
The consultant performed post-tender services for the contractor. The contractor alleged that the consultant had performed the services defectively. The contractor indicated that it wished to have the dispute resolved by adjudication. The consultant, however, maintained that no “construction contract” had been entered into within the meaning of the Construction Act 1996. There was correspondence between the parties’ solicitors in this connection which dealt with this issue and the consequent issue of whether a particular standard form of consultant’s appointment had been incorporated into the contract of engagement (with the result that the particular model form of adjudication procedure referred to in the standard form would govern any adjudication). Eventually an agreement was arrived at whereby an adjudication took place. The adjudicator made a decision in the contractor’s favour based on breach of the standard form of consultant’s appointment. The contractor brought court proceedings to enforce the decision. The consultant contended that the adjudicator had not had jurisdiction to make his decision because no “construction contract” had ever been entered into. The contractor contended that the decision should be enforced, whether or not such a contract had been entered into, on the basis that the adjudicator had answered the question referred to him and that it was irrelevant whether he made an error of law in coming to his decision.
Judge Seymour held firstly that no “construction contract” had been entered into. He also held that the parties through their solicitors had entered into an agreement that an adjudication should take place on the basis that the parties accepted that any decision would be binding on them notwithstanding their jurisdictional contentions. Finally he held that the decision should not be enforced because the adjudictor’s decision was wrong insofar as no “construction contract” had been entered into with the result that he had not had the jurisdiction to make the decision. The contractor tried to characterise the decision as (merely) wrong in law and submitted that caselaw made it clear that the courts will enforce decisions notwithstanding errors of law made by the adjudicator. The judge rejected this submission.
Advice Note
If the court holds in enforcement proceedings that the adjudicator did not have jurisdiction to make the decision, that decision will not be enforced because decisions are only binding until determined finally by court or arbitration proceedings or by agreement.