All Metal Roofing V Kamm Properties Ltd
Technology and Construction Court
7 October 2010
An adjudicator's decision was made against the contractor by the adjudicator awarding the sub-contractor a specified sum. The sub-contractor brought proceedings to enforce that decision by way of summary judgment. The contractor served a "defence" in response to the sub-contractor's notice of adjudication which stated that it had a valid complaint about delay which justified it in not paying any sum otherwise due to the sub-contractor. The contractor was permitted to put in a further defence two days later because the first "defence" did not deal with the referral notice served after the adjudication notice by the sub-contractor. The contractor stated in this further defence that it was served without prejudice to its contention that the sub-contract was not in writing within the meaning of section 107 of the Construction Act because of what it alleged to be an oral agreement forming part of the sub-contract. The sub-contractor accepted that this jurisdictional challenge had been properly made.
Whilst Akenhead J did not have to decide whether the contractor's reservation as to its position on the adjudicator's jurisdiction in its second defence had been properly made in the light of the sub-contractor's acceptance that it had, the judge did express an obiter (non-binding) view. He stated that if it had been necessary to make a finding, the court would probably have decided that the contractor did not waive its right to reserve its position as to the adjudicator's jurisdiction by only making that reservation in its second defence served two days after its original defence. The contractor's further written defence undoubtedly did make an effective reservation of jurisdiction. In the light of, rather than in spite of, the authorities, it might well be the case (although no final finding had to be made) that the contractor in the adjudication did make an adequate reservation of jurisdiction in its second defence within a very short period of time of putting in the first defence and before it was suggested that anyone acted on the first defence to its detriment. It was very doubtful whether the two day period between the serving of those two defences could be said to amount to an effective waiver on the contractor's part of the right to raise a jurisdiction objection.