LPL Electrical Services Ltd -v- Kershaw Mechanical Services
The sub-contractor's jurisdictional challenge to the adjudicator's decision ordering payment in respect of two applications that the notice of referral only stated that the sub-contractor had not paid on the second of the two applications should not succeed
2 February, 2001
The sub-sub-contractor was awarded in the adjudicator's decision the balance claimed by it under two payment applications and applied for summary judgment in court proceedings to enforce that decision. The sub-contractor contended that the adjudicator did not have jurisdiction to make the award on the ground that the whole reference to adjudication only related to the second of the two applications under which the sub-sub-contractor only claimed a very small proportion of the sum awarded (ie the aggregate of the balance is due under the applications). The sub-contractor therefore argued that the decision was made without jurisdiction. Judge Havery held that the sub-contractor's challenge should not succeed and that the decision should be enforced by way of summary judgment. This was because under the two payment applications the sub-sub-contractor in effect asked for the aggregate of the sums contained in those applications. In addition in its notice of referral the sub-sub-contractor asked for the aggregate of the sums in the two payment applications insofar as it stated that it had submitted payment applications for work carried out under the sub-sub-contractor and had not made payment in respect of the second of the two payment applications. Finally the sub-sub-contractor claimed the aggregate of the sums in the two payment applications less the amounts paid on account. Advice Note The conclusion reached by Judge Havery was a factual one and depended on the wording of the two interim payment applications in question and of the sub-sub-contractor's notice of referral to adjudication as well as on the nature of the claim it advanced in the adjudication. However, there is an important principle to be extracted from the judgment. This is that a claimant in adjudication must be extremely careful to set out in detail the nature of the dispute referred and of the claims being made to avoid a successful jurisdictional challenge being made by an unsuccessful defendant that the relief awarded does not reflect claim made.