Clark Electrical Ltd V JMD Developments (UK) Ltd

The adjudicator had been wrong to rule that he had jurisdiction based on an ad hoc agreement of the parties conferring jurisdiction
Technology and Construction Court
His Honour Judge Behrens
28th September 2012
The adjudicator sent letters including an outline timetable requiring the defendant to respond to the referral by a specified date, enclosed his schedule of conditions empowering him to raise an invoice to each party for his appointment fee as security for his fees and enclosed such invoices.
The defendant emailed the adjudicator stating that (i) It did not have representation, was not familiar with the adjudication protocols and would accordingly appreciate his guidance on them and its responsibilities (ii) It had not received the notice of adjudication and supporting documents and would appreciate his guidance and (iii) It was sure that the claimant would agree to extend the timetable to take account of this.
The defendant paid the adjudicator’s invoice. Its agent wrote to the adjudicator submitting that (i) He had no jurisdiction to proceed and (ii) Its payment of his appointment fee was not an acceptance that he had jurisdiction.
The claimant submitted that (i) The defendant had submitted to the adjudicator's jurisdiction in the full sense by virtue of its email and subsequent payment of the adjudicator's appointment fee (ii) Once the submission to jurisdiction had been made, it was irrevocable and (iii) The defendant’s requests in its email showed that it was participating in the adjudication process and thus submitting to the jurisdiction of the adjudicator in the full sense.
The adjudicator determined that he did have jurisdiction in what he described as a non-binding ruling and awarded the claimant a specified sum.
Judge Behrens rejected the claimant’s submissions and held that the adjudicator had been wrong to rule that he had jurisdiction based on an ad hoc agreement of the parties conferring jurisdiction. The defendant’s email was not a submission by it to the jurisdiction of the adjudicator in the required full sense. The adjudicator did not so interpret the email, described his ruling as "non binding" and did not refer to the email in his decision. Whilst a clear and unequivocal representation might not always be necessary, the defendant’s email was at the opposite end of the spectrum, contained no reference to the adjudicator's decision and simply requested guidance as to the procedure and more time. The payment by the defendant of the adjudicator’s appointment fee did not amount to a submission to the jurisdiction in the full sense and was at its highest equivocal.