Grovedeck Ltd v Capital Demolition Ltd 2

United Kingdom

If there is no agreement in writing between the parties, an adjudicator will lack jurisdiction. An exchange of submissions under S. 107(5) can only constitute an agreement in writing and confer jurisdiction if it predates the notice of referral to adjudication.

HHJ Bowsher QC, Technology & Construction Court

24 February 2000

G was a demolition sub-contractor undertaking work for C at two sites under oral agreements. C claimed it had not been paid sums due to it and suspended work. It gave notice to refer disputes under both oral agreements to adjudication. C argued that the adjudicator had no jurisdiction because the contracts were not in writing as required by Section 107 of the Act. The adjudicator found that he could not investigate the question of his own jurisdiction, but noted that G's notice to refer alleged that there were oral agreements and C's response did not deny this, and said that this was an exchange of written submissions constituting an agreement in writing pursuant to Section 107(5).

The adjudicator gave a decision in favour of G. G sought to enforce that decision. C said that the adjudicator lacked jurisdiction as the agreements were oral, and that G could not make both contracts the subject of one notice to refer in any event.

The court said that the position of whether the adjudicator had jurisdiction had to be judged at the date of his appointment. As the agreements were oral, he therefore lacked jurisdiction. Subsequent communications could not confer jurisdiction on him. Section 107(5) only applied where an oral agreement had been alleged and admitted in other proceedings prior to the appointment of that adjudicator. Submissions by parties to an unauthorised adjudicator could not give him jurisdiction.

The Scheme for Construction Contracts meant that there could only be adjudication of related disputes under different contracts with the consent of both parties (para 8). However, the Act did not prevent more than one contract being included in a notice to refer, and if a construction contract in writing complied with the Act it could provide for referral of disputes under more than one contract.

If there is no agreement in writing between the parties, an adjudicator will lack jurisdiction. An exchange of submissions under S. 107(5) can only constitute an agreement in writing and confer jurisdiction if it predates the notice of referral to adjudication.

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