John Sisk & Son Ltd v Duro Felguera UK Ltd (TCC - 25.1.2016)

In rejecting the contractor’s “internal jurisdictional” challenges at the outset of the adjudication, the adjudicator did not approach them with a closed mind and was therefore not apparently biased by predetermining them.
 

JOHN SISK & SON LTD v DURO FELGUERA UK LTD

Technology and Construction Court

Edwards-Stuart J

25th January 2016

The sub-contractor submitted a payment dispute to adjudication. The contractor in its initial response to the referral notice set out four challenges to what was described as the adjudicator’s “internal jurisdiction”. Whilst the contractor described these challenges as “jurisdictional” in nature, they were in effect contractual arguments as to why the sub-contractor’s claims had to fail.

 

Upon receipt of the response the adjudicator said that he (i) noted the challenges and the fact that the contractor did not confer on him jurisdiction to determine them (ii) took this to mean that power was not conferred on him to determine the extent of his jurisdiction (iii) was not prevented from carrying out an investigation into the challenges (iv) intended to carry out such an investigation and (v) invited the sub-contractor to provide its comments on the challenges. The contractor’s solicitor in his response stated that he agreed with the adjudicator’s proposed course of action. The adjudicator (i) in his response letter, which he described as being his “non-binding opinion”, dealt with and rejected all the challenges and declined to resign as adjudicator and (ii) in issuing his decision once again rejected the challenges, gave detailed reasons for rejecting them and made reference to the various submissions made to him.

 

Edwards-Stuart J held that the adjudicator, in rejecting the contractor’s “internal jurisdictional” challenges by his letter could not be said to have approached these challenges with a closed mind and was therefore not apparently biased by predetermining the issues involved in the challenges.

 

The judge stated that the purpose of the adjudicator reaching his conclusions as to these challenges at the outset of the adjudication was to determine whether he had jurisdiction to continue the referral, which he decided that he had. At no stage did he indicate that he would not entertain further submissions on the same points and he considered such submissions at the meeting on liability issues and in the parties’ submissions which he directed the parties to make thereafter. Whilst he reached the same conclusion on each ground in his decision as in his letter (i) That was not altogether surprising for the reasons given by Dyson LJ in Amec Capital Projects v Whitefriars City Estates (2004) (ii) The way in which he went about approaching his decision showed that he was not only willing to but did in fact consider the matter afresh and (iii) The contractor had every opportunity to present the arguments that it wished and obviously did so.

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