BRIMS CONSTRUCTION LTD v A2M DEVELOPMENT LTD
The employer waived any right to raise its jurisdictional challenge that the contractor had increased the scope of the adjudication by including its alternative argument based on clauses 18.104.22.168 and 4.11.4 in its referral notice.
28 October, 2013
Technology and Construction Court
28th October 2013
The employer brought a jurisdictional challenge which was rejected by Akenhead J. This challenge was that (i) The notice of adjudication defined and constrained the dispute to be decided by the adjudicator (ii) The dispute to be decided was limited to the claims for the specific amounts of money (in the alternative) as asserted in the notice of adjudication and (iii) The referral notice purported to expand on the notice of adjudication (beyond the two alternative claims said to have been specified in the notice of adjudication) to add an alternative argument based on clauses 22.214.171.124 and 4.11.4. The contractor’s referral notice set out the alternative argument and the relief claimed in consequence openly and clearly. The employer only raised its jurisdictional challenge (for the first time) 14 days after serving its response and 7 days before the decision was originally due to be issued.
Akenhead J accepted the contractor’s contention that the employer waived any right to raise its jurisdictional challenge that the contractor had increased the scope of the adjudication by including its alternative argument based on clauses 126.96.36.199 and 4.11.4 in its referral notice.
The employer did not seek to contend that the alternative argument was not obvious on the face of the referral notice. The adjudicator was factually wrong in suggesting when he asked for submissions on the effect of clause 4.11.4 that neither party had made any submission in this respect because that clause is expressly referred to in the referral notice. The employer was represented by competent solicitors who presented a comprehensible and articulate response which appears on its face to have been thoroughly researched by reference to the law and the facts. It is clear that the employer and those advising it had considered the provisions of the referral notice setting out the alternative argument because they expressly rejected what was said in those provisions as "wholly unmeritorious" and asserted in the response a positive case as to why they were wrong. There were the key elements of waiver, namely the words or conduct by the employer’s unqualified participation in the adjudication which were intended to be relied on and were actually relied upon by the contractor in preparing its reply to the response and answering the adjudicator’s request for submissions on the effect of clause 4.11.4. The contractor therefore necessarily relied upon the employer’s unqualified participation in the adjudication by its service of its response.