R. Durtnell & Sons Limited V Kaduna Limited
Technology and Construction Court
His Honour Judge Richard Seymour QC
19 March 2003
The adjudicator made an award in the contractor’s favour where the contract incorporated JCT 80. The employer objected to the enforcement of the decision by way of summary judgment.
Judge Seymour held that the adjudicator had no jurisdiction to make the assessments which he purported to make as to the grant of an extension of time or as to loss and expense dependent on that extension. This meant that the findings in his decision in this connection were invalid. The judge stated that this was because the time provided in JCT 80 for the architect to determine the contractor’s applications to him in this connection had not expired by the time the contractor served its notice of adjudication. There could therefore not have been a “dispute” which could properly be referred to adjudication at that time.
Judge Seymour further held that the employer’s failure during the course of the adjudication proceedings to raise the jurisdictional challenges raised by it during the course of the court proceedings should not be treated as a waiver by the employer of its right to do so in the court proceedings. This was on the basis that the adjudicator undoubtedly had some jurisdiction (albeit that the extent of his jurisdiction was at issue).
Judge Seymour went on to consider whether that part of the decision which he found to be invalid meant that the whole of the decision was to be regarded as invalid. The significance of this was that the employer both claimed and derived benefits from the findings of the adjudicator on some matters in dispute by seeking to limit its liability on an interim basis in respect of those matters to the sums determined by the adjudicator. The judge stated that generally a party to an adjudication could not pick and choose which parts of a decision he would accept and which he would not accept. This was because a decision had to be either accepted in whole or not at all. However, in the instant case the findings favourable to the employer related to different disputes from those in respect of which the employer sought to challenge the adjudicator’s jurisdiction.
If a contractual time limit for the consideration of a claim has not expired, it is very unlikely that the courts will hold that there can be a “dispute” for adjudication purposes.