Michael John Consruction Ltd v St Peter's Rugby Club (TCC - 30.7.2007)
MICHAEL JOHN CONSTRUCTION LTD v ST PETER’S RUGBY CLUB
Technology and Construction Court
His Honour Judge David Wilcox
30th July 2007
The contractor, in referring a dispute to adjudication against the unincorporated rugby club, served the notice of adjudication on the individual who had signed the contract “on behalf of” the club. The adjudicator awarded the contractor a specified sum. It was disclosed for the first time in the court enforcement proceedings that the signatory was the club’s director of development and that the true trustees of the club were three named individuals. The contractor began a second adjudication in which the responding parties were the trustees and the director. The adjudicator again made an award of a specified sum. The contractor brought further enforcement proceedings in which the trustees and the director were held to be personally liable by Judge Coulson. The club served a notice of arbitration seeking to overturn the adjudicator’s award. The contractor disputed the validity of the notice on the ground that it did not reflect Judge Coulson’s findings as to the contracting parties. The arbitrator in determining the preliminary issue as to his jurisdiction permitted further evidence not put before the adjudicators or the court and held that the contracting party was the director on his own behalf and on behalf of the club. The contractor appealed.
Judge Wilcox held that the arbitrator’s award in determining the preliminary issue as to his jurisdiction should be varied to the effect that there was no arbitration agreement between the contractor and the club as the representative of the members of the club at the relevant time.
The issue as to who were the contracting parties was expressly considered and determined by Judge Coulson in the enforcement proceedings. The arbitrator was wrong in law to permit the club’s director of development to adduce evidence to impugn Judge Coulson’s finding, which was not the subject of an appeal as to the identity of the parties who concluded the construction contract and therefore as to the arbitration agreement contained therein. The arbitrator was misled in acceding to the submission that the adjudicator's award was provisional because it was only binding until subsequent litigation or arbitration and that any determination in enforcement proceedings in the High Court were similarly provisional because it ignored the requirement that for an award to be made, an adjudicator had to have jurisdiction from the parties to make an award and that the court enforcing the award had to be satisfied as to the arbitrator's jurisdiction. It can only be in the most exceptional circumstances that a party may be permitted to bring forward further material relevant to the issue already decided by a court in subsequent proceedings, which were not present in the instant case.