SUMMARY
If there is any challenge to the Adjudicators jurisdiction then it should be taken in the first communication to the Referring Party and the Adjudicator. It should also be repeated at each communication and in each submission, in terms that the communications/submissions are made without prejudice to the challenge to jurisdiction.
Either Party may consider whether it wishes to have the matter of jurisdiction decided by the Courts before the Adjudicator makes his decision. In most cases the Responding Party will wait to see the outcome of the referral before raising the issue in the Courts. If the Adjudicator decides against the Responding Party, he may decide not to abide by the decision and wait to challenge the validity of the decision when the Referring Party attempts to enforce it.
Parties in dispute have always been able to
resolve their differences by adjudication if they both agreed. Such agreement was
relatively rare. The development of Statutory Adjudication under the Housing Grants,
Construction and Regeneration Act 1996 has been rapid principally because it does not
require the agreement of both parties and also because the Courts will enforce a decision
by summary procedure.
Statutory Adjudication is now firmly
established as the first formal approach to resolving disputes in the construction
industry. Since the Adjudicator derives his authority from statute it is not surprising
that when faced with an unwanted adjudication, there are challenges to an adjudicator's
authority or jurisdiction. Indeed it is now these challenges which are the main vehicle
for development of Adjudication law. There are two types of challenge.
The first type of challenge takes place when the adjudicator
is first appointed. The objection is that the adjudicator lacks jurisdiction at
all and that any decision will be unenforceable.
The first type of challenge is a fundamental
objection. The challenge may be that the contract in question is not caught by the Act. It
may for instance be an Excluded Contract under the Construction Contracts Exclusion Order
1998. The Order excludes different types of contract including the head contract in PFI
contracts. Alternatively the contract may not fall within the definition of construction
contract under the Act. In Project
Consultancy Group -v- The Trustees of the Grays Trust (1999) TCC the contract
had been entered into before 1st May 1998 and so was not caught by the Act. The
Adjudicator's decision was not enforced.
The first type of challenge will also include
objections that the Adjudicator is not empowered to decide the particular dispute
referred. His power is limited by the Act to disputes arising under the contract which are
disputes as to obligations created or incorporated in the Contract, including set-off and
breach of contract. Disputes that have been decided by another adjudicator cannot be
referred again to another adjudicator. The previous decision is provisionally binding on
the parties until finally determined in legal or arbitration proceedings, so for the
purposes of adjudication there is no longer a dispute. Indeed the Scheme for Construction
Contracts requires an adjudicator to resign when faced with such a situation.
The second
challenge is an objection to the way in which the adjudicator has decided the dispute;
that he has acted in excess or outside his jurisdiction. The second challenge is not that
the adjudicator has no authority to act, but an attack on the validity of the decision he
has made. The aim is to have the decision declared a nullity or sent back to the
adjudicator to reconsider.
The second type of challenge is presenting
the Courts with greater difficulties. It raises the issue of how far the Courts should
police the decisions of adjudicators. If the Adjudicator is to be treated the same as any
other statutory decision-maker, then established law in this area will allow the Courts to
examine the manner in which the decision was taken and either set it aside or refuse to
enforce the decision. In a non-adjudication case, Anisminic Ltd v Foreign Compensation Commission (1969)
Lord Reid had listed matters which cause the decision of a tribunal to be a nullity. These
included matter such as giving a decision in bad faith or failing to comply with the
requirements of natural justice. It included deciding a question not referred to him,
refusing to take account of something he should have taken into account or basing his
decision on a matter that was not a matter under the contract.
So, will the Courts treat adjudication in
this way? It would seem that there is now an English and Scottish divide on this issue. In
the English case of Project Consultancy his Honour Justice Dyson made
clear that an adjudicator's decision could not be attacked for failure to follow the rules
of natural justice. He went further in Bouygues
UK Limited -v- Dahl-Jensen UK Limited (In Liquidation) (1999) TCC. In that
case the adjudicator had made a mistake of fact which had the effect that he made a
decision on a matter which was not referred to him. If Anisminic had been
followed then this would have been considered in excess of jurisdiction and the decision
treated as a nullity or remitted to the Adjudicator. His Honour Justice Dyson would have
none of this. He refused to treat the mistake as anything other than a mistake of fact
which was part of the rough and tumble of adjudication.
The Courts in Scotland have taken an entirely
more traditional approach. In Homer Burgess Limited v Chirex (Annan) Limited (1999) Crt of
Session it was argued
that the Adjudicator had made an error in the interpretation of the meaning of the word
"plant" in the Housing Grants, Construction and Regeneration Act 1996. By doing
so, it was said, he had decided disputes that according to the Act were not within his
jurisdiction to make. The Court examined the views of Dyson J in Project
Consultancy. It reserved opinion on the soundness of the distinction drawn by
Dyson J between a decision which the adjudicator was not empowered to make and a decision
that was invalid on some other grounds such as breach of the rules of natural justice. It
was considered that it was difficult to reconcile the views expressed in Project
Consultancy with those in Ansiminic.
The Court decided to remit the matter to the
Adjudicator, so that he could modify his decision, taking out those parts that were
outside his jurisdiction. In making its decision the Court made clear that it would follow
a different approach to that of Dyson J. Subsequent cases under Scots
Law have concentrated on the powers of the Court by Judicial Review to
supervise adjudication.
In Barr Limited v Law Mining Limited (2001)
the Court of Session considered challenges to the adjudicators
jurisdiction in enforcement proceedings of two separate adjudications. Lord
Macfadyen had reservations about the way in which the first of His Honour
Judge Thornton's propositions in Sherwood & Casson Ltd v Mackenzie
was expressed, namely that a decision of an adjudicator whose validity was
challenged as to its factual or legal conclusions or as to procedural error
remains a decision that is both enforceable and should be enforced. He stated that he would have agreed if it had said "the
soundness of which is challenged" rather than "whose
validity is challenged Lord Macfadyen had reservations relating to Dyson
J's treatment of "procedural error" in Macob. Lord Macfadyen stated that he would not rule out the possibility that
there may be a procedural error that produces the result that the
adjudicator has made a decision that is beyond his jurisdiction. Lord Macfadyen agreed
with His Honour Judge Thornton's fourth proposition in so far as it
encouraged a pragmatic approach to the interpretation of the adjudicator's
decision. The court should be
careful not too readily to characterise a mistake on the part of the
adjudicator as taking him out of his jurisdiction.
The judgment of Lord Reed in Ballast plc v The Burrell Company (Construction Management) Limited (2001) is an important analysis of the legal status of adjudication adopting a contract-based approach.
Lord Reed held that although the provisions for adjudication had contractual effect, they could not be regarded as terms to which the parties have freely agreed. In one form or another, they were compulsory contract terms imposed by statute. Nevertheless, the approach to the issue was not on the basis that the adjudicator was exercising a jurisdiction created by statute or, in other words, exercising statutory powers and bound by statutory duties. The adjudicator's decision was of a provisional nature, and not intended necessarily to be the same as the decision that would eventually be reached by litigation or arbitration.
Adjudication was intended to be an expeditious means of reaching a decision: the timetable envisaged was too short to allow for the type of procedure, or the type of hearing, which would in most cases be necessary for the issues of fact and law involved in the dispute to be explored as fully as in an arbitration or in court proceedings. The adjudicator was therefore entitled to adopt a more inquisitorial role than that of a judge or an arbiter.
These aspects of adjudication - the short timetable, the scope for inquisitorial procedure, and the provisional nature of the decision - fitted together as elements in a coherent scheme.
Lord Reed observed that notwithstanding the provisional nature of the decision, the parties agreed to comply with it. That obligation could be enforced by application to the court. It was held that on such an application being made, it was not appropriate for the courts to undertake an investigation into the merits of the dispute in order to ascertain whether the adjudicator has reached the same decision, as a court would have done. To some extent, therefore, the adjudicator's decision must be binding, temporarily, notwithstanding that a court would not agree with it. To the extent that the adjudicator's decision was binding, it might be said that there was, in effect, a temporary ouster of the court's jurisdiction to determine the matters in dispute.
Lord Reed noted that the contract based on the Scheme imposed a number of express requirements with which the adjudicator
was to comply. The consequences of any failure to comply with those requirements was not stated in the
contract. It was held that they were to be determined by interpretation of the contract.
Lord Reed held that if the requirements are intended to be enforceable, the means of enforcement was the release of the parties from obligations which would otherwise be binding upon them: notably the obligation to comply with the adjudicator's decision, or the obligation to pay his fees and expenses.
The requirements in question may not necessarily be intended to be enforceable. An adjudicator's decision was intended to be binding notwithstanding any failure to comply with the requirements of the Scheme, provided the decision was of the dispute which had been referred to him. Lord Reed considered that the issue was whether a given error did or did not "invalidate" the decision in the sense of rendering the decision non-binding.
Lord Reed considered that adjudicators' decisions were not intended to be entirely immune from challenge. Whilst both parties to the contract undoubtedly had a strong interest in the enforceability, without delay, of adjudicators' decisions, they also had an interest in being protected against decisions that were unjust.
Notwithstanding the ephemeral and subordinate character of an adjudicator's decision, and the deemed intention that adjudication should be an expeditious procedure rooted in commercial common sense, Lord Reed considered that the Court should be slow to attribute to the parties an intention that the adjudicator's decision should always be binding notwithstanding errors of law, procedural unfairness or lack of consideration of relevant material submitted to him by the parties, no matter how fundamental such a breach of the adjudicator's obligations might be.
Lord Reed recognised that the contractual approach differed to some extent, in emphasis at least, from the approach adopted by Lord Macfadyen in
Homer Burgess Ltd v Chirex (Annan) Ltd [2000] but considered that the authorities on judicial review to which Lord Macfadyen referred may nevertheless be
relevant. Lord Reed concluded that the Scheme should be interpreted as requiring the parties to comply with an adjudicator's decision, notwithstanding his failure to comply with the express or implied requirements of the Scheme, unless the decision is a nullity. The decision would be a nullity if the adjudicator has acted ultra
vires, (using that expression in a broad sense to cover the various types of error or impropriety which can vitiate a decision), for example because he had no jurisdiction to determine the dispute referred to him, or because he acted unfairly in the procedure which he followed, or because he erred in law in a manner which resulted in his failing to exercise his jurisdiction or acting beyond his jurisdiction.
It is clear that Adjudication law is at a
critical stage of development. If it is to be regarded as the same as other forms of
statutory decision making, then the Courts will have greater control of the process and
challenges to jurisdiction will continue to be the usual form of defence. If a more robust
view is taken then Adjudication may indeed fulfill its promise of providing a rapid means
of dispute resolution without the procedural problems in other dispute resolution
procedures.
A summary of the possible grounds for challenges of lack of jurisdiction are given below, but the law is still developing:
- The contract is an Excluded Contract.
- The contract is not a construction contract, because
- It is not an agreement as intended by the
Act, or
- It is an Employment Contract, or
- It relates to residential dwellings.
- It is not an agreement entered into before 1st May 1998.
- It is not an agreement in writing as defined in the Act.
- It is not an agreement to carry out construction operations as defined in
the Act.
- The dispute is not a dispute under the agreement; which excludes issues
such as:
- Request for rectification of the contract.
- Issues relating to misrepresentation.
- Issues relating to negligent misstatement.
- Claims under a collateral warranty or contract.
- Claims under a contract that is void for illegality.
- Decisions on the adjudicator's jurisdiction.
- The dispute has previously been decided in adjudication.
A summary of the grounds for challenges of excess of jurisdiction are (but the law is still developing):
- A decision given in bad faith.
- A decision which the Adjudicator had no power
to make.
- Failure to comply with the requirements of
fairness or natural justice.
- Deciding a question not referred to him.
- Refusing to take account of something he
should have taken into account.
- Basing his decision on a matter that was not a
matter under the contract.
In Fastrack Contractors Ltd v Morrison Construction Ltd
(4th Jan 2000) TCC His Honour Judge Thornton QC suggested
four possible approaches for a party to deal with and decide challenges to
jurisdiction:
1. The parties can agree to widen the jurisdiction of the adjudicator
so that he can decide his own jurisdiction. If the adjudicator accepts
this second dispute, then the jurisdiction of the adjudicator could be
resolved as part of the reference.
2. The challenging party could refer the issue of jurisdiction to
another adjudicator. This would not halt an adjudicator already appointed
since he has a statutory duty to decide in a very short timescale, unless
the parties otherwise agree.
3. The challenging party could seek a declaration from the court. This
was of little use unless the adjudicator had yet to be appointed or the
parties agreed to put the adjudication into abeyance pending the courts
determination of the jurisdiction question. The TCC could for example,
resolve questions of that kind within days of being referred to them.
4. The challenging party could reserve its position whilst
participating in the adjudication and then challenge any attempt to
enforce the adjudicators decision. The Court would give appropriate
weight to any findings of fact relevant to the jurisdictional challenge
but would not be bound by them and would either have to hear out the
challenge with evidence or, if that was not necessary, determine the
challenge and either enforce or decline to enforce the whole or part of
the adjudicators decision.
In Christiani & Nielsen v The Lowry Centre Development Co Ltd
(2000) TCC his Honour Judge Thornton QC gave useful guidance to
adjudicators faced with a challenge to jurisdiction. When faced with a
challenge to his own jurisdiction, the adjudicator has a choice as to how to
proceed. The adjudicator has three options:
1. He can ignore the challenge and proceed as if he had jurisdiction,
leaving it to the court to determine that question if and when his
decision is the subject of enforcement proceedings.
2. Alternatively, the adjudicator can investigate the question of his
own jurisdiction and can reach his own conclusion as to it. If he was to
conclude that he had jurisdiction, he could then proceed to decide the
dispute that had been referred to him. That decision on the merits could
then be challengeable by the aggrieved party on the grounds that it was
made without jurisdiction it the adjudicator's decision on the merits
was the subject of enforcement proceedings.
3. Having investigated the question, the adjudicator might conclude
that he had no jurisdiction. The adjudicator would then decline to act
further and the disappointed party could test that conclusion by seeking
from the court a speedy trial to determine its right to an adjudication
and the validity of the appointment of the adjudicator.
He held it was prudent, indeed desirable, for an adjudicator faced with a
jurisdictional challenge which is not a frivolous one to investigate his own
jurisdiction and to reach his own non- binding conclusion as to that
challenge. An adjudicator would find it hard to comply with the statutory
duty of impartiality if he or she ignored such a challenge.
In A&D Maintenance and Construction Ltd v Pagehurst Construction
Services Ltd (June 99) TCC one important part of the decision was how to
deal with the issue of the jurisdiction of the Adjudicator and late attempts
to open up applications for payment or open up an Adjudicators decision.
Pagehurst argued that certain of the invoices raised by A&D had not
become payable and should not have formed part of the Adjudicators
decision. In addition Pagehurst had consistently taken the position in the
adjudication that it was not appropriate for the issue referred to
adjudication to be decided in isolation of A&Ds claims for losses
allegedly caused by A&D. Although Pagehurst had threatened to challenge
the Adjudicator they did not do so, but had instead participated in the
Adjudication. They could have sought an immediate ruling by the Adjudicator
as to his jurisdiction which could have been the subject of an immediate
challenge. They did not do so.
It was held that in this case the Adjudicator had the power to deal with
the types of issues raised by Pagehurst. The Court would not therefore
review the Adjudicators decision. The Court would not consider whether
the Adjudicators decision was a correct evaluation when deciding whether
or not to enforce the decision. The value of the work carried out and issues
such as claims for damages for breach of contract could have been argued
before the Adjudicator, and it seems they were, but they were matters to be
dealt with in subsequent arbitration proceedings or legal proceedings or by
agreement. Reference was made to the decision in Outwing Construction Ltd
v H Randell & Son Ltd (1999) TCC in which it was held that the
decision of the Adjudicator has to be complied with, pending final
determination. There was no provision for a "stay of execution".
An objection
to jurisdiction must be given at the earliest stages of the Adjudication proceedings since
otherwise a party will be treated as having submitted to the process.
In Macob Civil Engineering Ltd -v- Morrison
Construction Ltd (1999) TCC it was alleged that Morrison had failed to
make payment in accordance with application number 6. The adjudicator issued
his decision peremptorily under paragraph 23 (1) of the Scheme for
Construction Contracts and gave permission under Section 42 of the
Arbitration Act 1996 as modified by paragraph 24 of the Scheme, for each
party to apply to the Court for an order requiring compliance.
His Honour Mr Justice Dyson held that the adjudicators decision was
binding and enforceable until the challenge to the validity of an
adjudicators decision is finally determined. Until then, the decision is
binding and enforceable. The word "decision" appears in Section
108(3) of the Act and paragraph 23(2) of Part I of the Scheme. It was to be
given its plain and ordinary meaning.
"If his decision on the issue referred to him is wrong, whether
because he erred on the facts or the law, or because in reaching his
decision he made a procedural error which invalidates the decision, it is
still a decision on the issue."
In Project Consultancy Group -v- The Trustees of the
Gray Trust (1999) TCC the adjudicator had decided that he had
jurisdiction to make a decision on the dispute referred to him. The Trustees
argued that since the contract was made before 1st May 1998, that
the adjudicators decision was one he had no jurisdiction to make. His
Honour Mr Justice Dyson, referring to his decision in Macob, held
that
"...different considerations apply where the adjudicator purports
to make a decision which he is not empowered by the Act to make."
An example given was a dispute arising under a contract which was not a
construction contract within the meaning of Section 104(1) of the Act.
Another example is where the contract does not fall under Section 108
because it was entered into before 1st May 1998.
It was held that a decision by an adjudicator could be challenged in
enforcement proceedings on the grounds that the adjudicator was not
empowered by the Act to make the decision.
His Honour Justice Dyson then considered whether, and if so when, a
contract was ever concluded. He decided that it was not possible to resolve
these issues by summary process, and without full evidence and argument. The
application for summary judgment was therefore dismissed.
All issues need to be raised in the adjudication proceedings since they will usually be within the power of the Adjudicator to decide. The appropriate time to raise these matters is of course by notices before the final date for payment. Once a decision is made on payment the Court will not open up review or revise the decision of an Adjudicator, since these are matters for subsequent proceedings. It is important therefore to fully argue the case in adjudication.
In Homer Burgess Limited v Chirex (Annan) Limited
(1999) Crt of Session it was argued that the adjudicators error in
interpretation of the meaning of the word "plant" meant that a
very substantial proportion of the award made by the adjudicator related to
matters which were outside his jurisdiction. The Court held that on a matter
of construction of the statutory provisions:
"In my opinion the temporarily binding quality accorded to
decisions of the adjudicator by paragraph 23(2) is accorded only to
decisions on matters of dispute arising under a construction contract. The
question whether a particular dispute does arise under a construction
contract is a preliminary issue which the adjudicator must address, but it
is not itself a dispute arising under a construction contract. I am
therefore of opinion that a decision by an adjudicator as to whether a
particular dispute or a particular aspect of a dispute falls within his
jurisdiction is not one which is exempted by paragraph 23(2) from review
in proceedings such as the present action."
The above opinion was also based on the authorities dealing with
decisions by statutory decision- makers. It was held that an adjudicator is
in substantially the same position as any other statutory decision-maker, at
least as far as the power of the courts to review whether he has acted
within his jurisdiction. The guidance of the decision in Anisminic Ltd v
Foreign Compensation Commission (1969). In that case Lord Pearce said:
"It would lead to an absurd situation if a tribunal, having
been given a circumscribed area of enquiry, carved out from the general
jurisdiction of the courts, were entitled of its own motion to extend that
area by misconstruing the limits of its mandate to inquire and decide as
set out in the Acts of Parliament."
On this basis it was held that if an adjudicator falls into error of law
as to the scope of his jurisdiction, and results in a decision on matters to
which the statutory adjudication procedure does not properly apply, it is
open to the Court to set aside the decision, or at least to decline to give
it the temporary binding effect which statute gives to a valid decision of
an adjudicator.
The Court examined the views of Dyson J in Project Consultancy and
reserved opinion on the soundness of the distinction drawn by Dyson J
between a decision which the adjudicator was not empowered to make and a
decision that was invalid on some other grounds such as breach of the rules
of natural justice. It was considered that it was difficult to reconcile the
views expressed in Project Consultancy with those in Ansiminic
and in particular the matters listed by Lord Reid which may cause the
decision of a tribunal to be a nullity:
"....It may have given its decision in bad faith. It may have
made a decision which it had no power to make. It may have failed in the
course of the inquiry to comply with the requirements of natural justice.
It may in perfect good faith have misconstrued the provisions giving it
power to act so that it failed to deal with the question remitted to it or
decided some question which was not remitted to it. I may have refused to
take into account something which it was required to take into account. Or
it may have based its decision on some matter which, under the provisions
setting it up, it had no right to take into account. I do not intend this
list to be exhaustive. But if it decides a question remitted to it for a
decision without committing any of these errors it is as much entitled to
decide that question wrongly as it is to decide it rightly."
It was emphasised that the decision was expressed in terms of an error in
law by the adjudicator as to the scope of his jurisdiction, but that this
was not to be taken to mean that an error of fact resulting in an excess of
jurisdiction would not have the same effect. The Court reserved its opinion
on this matter too.
The Court then had to decide what substantive order should be made. It
was accepted that part of the dispute was within the adjudicators
jurisdiction. It was held that it was open to the Court to regard the
adjudicators error as to the scope of his jurisdiction as undermining the
validity of his decision as a whole, despite there being parts of it that
might have been made to the same effect if he had not erred as to his
jurisdiction. Alternatively the Court could enforce that part of the award
which was intra vires. The court considered whether the adjudicator
was better placed to review the detail of his decision and determine which
parts stood with the proper interpretation of "plant". Since there
was no doubt as to the competency of the adjudicator, the matter was
remitted to him. Although he was now out of time the parties would agree to
an extension of time under paragraph 19(1)(c). In any event there was
nothing to prevent the pursuers from making a fresh referral to
adjudication.
In Bouygues UK Limited -v- Dahl-Jensen UK Limited (In
Liquidation) (1999) TCC the issue was an adjudicators decision which
included a mistake in the calculation on which the payment was based.
Bouygues sought a declaration that the decision should be set aside as void,
or remitted to the adjudicator with the Courts opinion and a direction
that the adjudicator make a further decision taking account of the opinion.
Bouygues argued that the effect of the adjudicators mistake was to
determine the release of retention, which had not been referred to him in
either partys adjudication notice. His Honour Justice Dyson held that the
adjudicator
"was doing precisely what he had been asked to do, and was
answering the right question, but he was doing so in the wrong
way."
In this case Bouygues would not be able to recoup its losses due to the
mistake in subsequent litigation or arbitration since Dahl-Jensen had become
insolvent. His Honour Justice Dyson held that the Court should
"guard against characterising a mistaken answer to an issue that
lies within the scope of reference as an excess of jurisdiction.
.... it is inherent in the scheme that injustices will occur because
from time to time, adjudicators will make mistakes...."
The issue in Farebrother Building Services Limited v Frogmore
Investments Limited (April 2001) TCC was whether the Courts should
intervene when an Adjudicator had not apparently taken into account a
defendant cross-claim closely connected with the issues. The adjudication
was on TeCSA Rules.
It was held that the court ought to give effect to the statutory
provision, and not seek to whittle it down by finding reasons for
intervening and saying that the decision ought not to be regarded as
binding. The approach taken by his Honour Judge Lloyd in Barr Limited v Law Mining Limited (2001)
the Court of Session a ground for challenging the
adjudicators decisions was that the contracts had been rescinded and
therefore the adjudicator did not have jurisdiction to determine a dispute
over a claim presented in a form which did not distinguish between work done
before and work done after rescission. There was a dispute whether the contract had been rescinded. It was held that the adjudicator would only have had jurisdiction if
he had first decided that there had been no rescission. In the case of one of the
adjudications, it was held that he had made no such decision, and therefore
he had no jurisdiction to determine the part of the dispute affected by that
issue. A summary decree was
therefore given for part only of the adjudicator's decision not affected by the lack of jurisdiction.
The law is still in development but the
following appears to be the present position:
1. If the Adjudicator makes a wrong decision on an issue referred to him
on which he is empowered to make a decision, whether because he erred on
the facts or the law, or because in reaching his decision he made a
procedural error which invalidates the decision, it is still a decision
on the issue - Macob.
2. If the Adjudicator make a decision which he is not empowered by the
Act to make, then this is not a decision - Project Consultancy
3. Failure to comply with the requirements of natural justice may
invalidate the decision.
4. A mistake in law causing an excess of jurisdiction will invalidate
that part of the decision - Project Consultancy and Homer.
5.
A mistake in fact causing an excess of jurisdiction will not invalidate
that part of the decision - Bouygues
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