Fastrack Contractors Ltd v Morrison Construction Ltd & Imreglio UK Ltd 2

An adjudicator can enquire into his own jurisdiction, but his decision will not bind the parties and can be reviewed by the court. One dispute can encompass all claims, issues and contentions in issue when the reference was made.

HHJ Thornton QC, Technology & Construction Court

4 January 2000

F was a brickwork sub-contractor to M. The work became delayed and the parties blamed each other. F applied for an extension of time; M said it would take some of F's work away; F threatened to take legal action. On 26 February, F submitted an interim application. M served a notice on 2 March saying it was going to monitor F's work. M then served a notice of payment on 10 March reducing several of the amounts claimed. It also said that third parties would be engaged to expedite the works. F treated this as repudiation of the contract and withdrew from site. M then served a notice of determination. No payment was made by the final date for payment on 20 March. On 17 March F submitted its next interim application, and M sent a notice of set-off on 25 March in respect of sums exceeding the net sum claimed in the previous two interim applications.

F sought one adjudication in respect of its first interim application and money was awarded to it. F then sought a second adjudication and was awarded further sums. M argued that there was no dispute to refer to adjudication on the basis that there were significant differences between the sums in the interim application and the notice to adjudicate, and the discrepancies meant that there was no dispute about the figures in the notice to adjudicate and hence no jurisdiction. The second award included the money awarded in the first adjudication. M paid the first adjudicator's award, but not the second and F's liquidator applied to enforce the second decision.

The court held that the dispute referred was a complex one, but it was clear that the disputed issues additional to the interim application had been referred to M and rejected. The adjudicator had jurisdiction to examine his own jurisdiction and make a decision on it, but that jurisdiction issue was not part of the dispute between the parties and therefore his decision as to jurisdiction was not binding and could be reviewed by the court.

The court noted that a party could only refer a single dispute, although by agreement a reference to adjudication could cover more than one dispute. One dispute could encompass all claims, issues and contentions in issue when the reference was made. A party could not refer a dispute and then tack on further matters. However, that did not mean that only the precise sums previously claimed could be referred, as the dispute could be about what sum was due rather than whether a particular sum was due.

An adjudicator can enquire into his own jurisdiction, but his decision will not bind the parties and can be reviewed by the court. One dispute can encompass all claims, issues and contentions in issue when the reference was made.