Rc Pillar & Son V The Camber

Ad hoc jurisdiction was conferred on the adjudicator despite the employer's initial objections by the employer making positive cross claims in its response document and by the contractor agreeing to those claims being determined in return for the employer waiving its objections

Technology and Construction Court
His Honour Judge Anthony Thornton QC
15 March 2007
The employer raised various objections to the adjudicator's jurisdiction as soon as the adjudicator in the adjudication begun by the contractor had been appointed. Whilst the employer stated in its response document to the contractor's pleaded claims that it would only take part in the adjudication on the basis that the adjudicator had no jurisdiction, it set out in that document a pleading called its "contra charges claim" which (i) comprised cross claims for damages for defective work which went far beyond an abatement or equitable set off and for loss and expense caused by the contractor's alleged late completion of the works and (ii) stated at the end by way of positive claim or prayer that the employer was entitled to compensation in a specified sum. The adjudication proceeded and the adjudicator considered both parties' claims and cross claims before making an award in the contractor's favour. The employer refused to pay the sum awarded and the contractor brought court proceedings to enforce the adjudicator's decision.
Judge Thornton held that ad hoc jurisdiction had been conferred on the adjudicator despite the jurisdictional objections raised made by the employer at the outset of the adjudication. This was on the basis that the cross claims document constituted an offer to the contractor to widen the adjudicator's jurisdiction to determine those claims in return for the employer waiving its jurisdictional objections to the contractor bringing an adjudication. The contractor accepted the employer's offer to widen the adjudicator's jurisdiction by (i) conceding that the adjudicator could determine the employer's cross claims without regard to the fact that the employer had failed to serve any withholding notices in relation to the contractor's claims and (ii) allowing the adjudication to proceed on the basis that the adjudicator would determine all claims and cross claims on their merits and without reference to withholding notices or other procedural defences. The parties' agreement by their pleadings to waive any jurisdiction objections each might have had in the adjudication was made against the background of the provision in the adjudication rules that the adjudicator had the discretionary power to add and decide additional disputes if they were closely related to the dispute originally referred.